Certified Ems, Inc. D/B/A Cpns Staffing v. Cherie Potts, 392 S.W.3d 625 (Tex. 2013). · Go Syfert
Certified Ems, Inc. D/B/A Cpns Staffing v. Cherie Potts, 392 S.W.3d 625 (Tex. 2013). Cases Citing This Book View Copy Cite
742 citation events (742 in the last 25 years) across 9 distinct courts.
Strongest positive: Hee-Sook Cheon, NP v. Scott Knowles, Individually and as Personal Representative of the Estate of Carolyn Marie Knowles (txctapp1, 2026-05-28)
Treatment trajectory · 2013 → 2026 · click a year to view as-of
2013 2019 2026
Under fire: who is questioning this case
Citations from separate opinions of courts that could overrule this case. This is a warning signal, not a treatment change. The flag color above is unaffected.
Concurrence Renaissance Medical Foundation v. Rebecca Lugo, Individually and as Next Friend of I.B. (2025)
“Id. at 567–68 (quoting Zamarripa, 526 S.W.3d at 461 ). 23 392 S.W.3d 625 (Tex. 2013). 24 Id. (quoting Fung v. Fischer, 365 S.W.3d 507, 522 (Tex. App.—Austin 2012, no pet.)). 9 imposing liability absent proximate cause.”
Dissent Jared Bush, Jr. v. Columbia Medical Center of Arlington Subsidiary, L.P. D/B/A Medical City Arlington and Hca Inc. (2025)
“As Zamarripa held, without the right of control, the effect of a hospital policy on physicians cannot be presumed. 35 Discounting physician independence, the Court 34 We did not backtrack from years of vigilantly guarding against third-party liability for injuries caused by another in Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 629 (Tex. 2013).”
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Hee-Sook Cheon, NP v. Scott Knowles, Individually and as Personal Representative of the Estate of Carolyn Marie Knowles
txctapp1 · 2026 · quote attribution · 1 verbatim quote · confidence high
no provision of the act requires an expert report to address each alleged liability theory.
examined Cited as authority (verbatim quote) 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 (3×) also: Cited "see", Cited "see, e.g."
Tex. App. · 2025 · signal: see also · quote attribution · 1 verbatim quote · confidence high
a report need not cover every alleged liability theory to make the defendant aware of the conduct that is at issue.
discussed Cited as authority (verbatim quote) McKinney Podiatric Associates, P.A., Coastal Foot & Ankle Associates, P.A., and Hina Shafqat Hassan, DPM v. Zeenethia Jackson
Tex. App. · 2024 · quote attribution · 1 verbatim quote · confidence high
an expert report that adequately addresses at least one pleaded liability theory satisfies the statutory requirements, and the trial court must not dismiss in such a case.
discussed Cited as authority (verbatim quote) Octavio Aguilera The Schumacher Group of Texas, Inc. VHS Harlingen Hospital Company, LLC D/B/A Valley Baptist Medical Center-Harlingen Adrian Alaniz Kristen White George Huddleston, IV, M.D. And William Taw, M.D. v. Eliazar Costilla, Individually and as the Representative of the Estate of Kristy Renee Costilla, and as Next Friend of A.J.C. and C.K.C., Minors Melinda Rodriguez Leal And Camilo Trevino
Tex. App. · 2023 · signal: see · quote attribution · 1 verbatim quote · confidence high
an expert report that adequately addresses at least one pleaded liability theory satisfies the statutory 14 requirements, and the trial court must not dismiss in such a case.
discussed Cited as authority (verbatim quote) Harold David Wills, D.O. v. Ana Mendoza
Tex. App. · 2022 · signal: see also · quote attribution · 1 verbatim quote · confidence high
the legislature's goal was to deter baseless claims, not to block earnest ones.
discussed Cited as authority (verbatim quote) Jacksboro Nursing Operations, LLC v. Nadine Norman, Individually, as the Representative of the Estate of Ashley Norman, as Next Friend of E.N. and J.L., Minors, and on Behalf of All Wrongful Death Beneficiaries
Tex. App. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
no provision of the mla requires an expert report to address each alleged liability theory.
examined Cited as authority (verbatim quote) 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 (5×) also: Cited "see", Cited "see, e.g."
Tex. App. · 2021 · signal: see · quote attribution · 2 verbatim quotes · 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.
examined Cited as authority (verbatim quote) CHCA Clear Lake, L.P. D/B/A Clear Lake Regional Medical Center v. Jon K. Stewart (5×) also: Cited "see", Cited "see, e.g."
Tex. App. · 2021 · signal: see · quote attribution · 1 verbatim quote · confidence high
a report that satisfies the requirements, even if as to one theory only, entitles the claimant to proceed with a suit against the defendant physician or health care provider.
examined Cited as authority (verbatim quote) Rosalinda Soliz v. McAllen Hospitals, L.P. (3×) also: Cited "see"
Tex. App. · 2020 · signal: see · quote attribution · 1 verbatim quote · confidence high
a valid expert report has three elements: it must fairly summarize the applicable standard of care; it must explain how a physician or health care provider failed to meet that standard; and it must establish the causal relationship between the failure and the harm alleged.
discussed Cited as authority (verbatim quote) in Re Comaneche Turner, as Natural Parent and Next Friend of M.T., a Minor
Tex. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
the expert report requirement is a threshold mechanism to dispose of claims lacking merit . . . .
examined Cited as authority (verbatim quote) First Nobilis Surgical Center, LLC D/B/A First Street Surgical Center and Michael Ciaravino, M.D. v. Patricia Phillips (7×) also: Cited as authority (rule), Cited "see", Cited "see, e.g."
Tex. App. · 2019 · signal: see also · quote attribution · 2 verbatim quotes · confidence high
the purpose of evaluating expert reports is to deter frivolous claims, not to dispose of claims regardless of their merits.
discussed Cited as authority (verbatim quote) Seton Family of Hospitals D/B/A Seton Medical Center Williamson v. Tomaurz White as Administrator of the Estate of Latoya Jones and as Next Friend of A.W., a Minor Gale MacHon Jones And Clarence Jones (2×) also: Cited as authority (rule)
Tex. App. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
while a full development of all liability theories may be required for pretrial motions or to convince a judge or jury during trial, there is no such requirement at the expert report stage.
discussed Cited as authority (verbatim quote) the Methodist Hospital, Methodist Health Centers, Baylor College of Medicine and Donald T. Donovan, M.D. v. Cheryl Addison (2×) also: Cited "see"
Tex. App. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
a report need not cover every alleged liability theory to make the defendant aware of the conduct that is at issue.
discussed Cited as authority (verbatim quote) Misty Jackson, Individually and on Behalf of the Estate of Roger J. Young, And Roger Jackson v. Kindred Hospitals Limited Partnership D/B/A Kindred Hospital Fort Worth (2×) also: Cited as authority (rule)
Tex. App. · 2018 · signal: see also · quote attribution · 1 verbatim quote · confidence high
a report need not cover every alleged liability theory to make the defendant aware of the conduct that is at issue.
discussed Cited as authority (verbatim quote) Nexion Health at Duncanville, Inc. D/B/A Duncanville Healthcare and Rehabilitation Center v. Ruth J. McCray, Individually and on Behalf of the Estate of John R. McCray
Tex. App. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
an expert report that adequately addresses at least one pleaded liability theory satisfies the statutory requirements, and the trial court must not dismiss in such a case.
discussed Cited as authority (verbatim quote) Cedar Senior Services, L.P. v. Gloria Nevarez, Cynthia Cox, Pablo Nevarez, Jr., William Nevarez, Genaro Torres, as Next Friend of Genaro Torres, Jr. and Eva Torres, and Pablo Arispe, as Next Friend of Blake Arispe and Tristan Arispe as Heirs of Pablo Nevarez (2×) also: Cited as authority (rule)
Tex. App. · 2014 · signal: see · quote attribution · 1 verbatim quote · confidence high
a report need not cover every alleged liability theory to make the defendant aware of the conduct that is at issue.
discussed Cited as authority (verbatim quote) Cedar Senior Services v. Nevarez (2×) also: Cited as authority (rule)
Tex. App. · 2014 · signal: see · quote attribution · 1 verbatim quote · confidence high
a report need not cover every alleged liability theory to make the defendant aware of the conduct that is at issue.
examined Cited as authority (quoted) El Paso v. Enterprises, LLC D/B/A Pebble Creek Nursing Center; Creative Solutions in Healthcare, Inc.; And Honor X Enterprises, L.L.C. v. Rodolfo Reyes, Individually, on Behalf of Wrongful Death Beneficiaries, and as the Proposed Administrator of the Estate of Estela Reyes
txctapp8 · 2026 · signal: see also · quote attribution · 1 verbatim quote · confidence low
a 74.351 expert report does not require litigation-ready evidence. rather, 'to avoid dismissal . . . the report can be informal . . . and does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.
discussed Cited as authority (quoted) Christus Spohn Health System Corporation v. Jose Castro
Tex. App. · 2013 · signal: see · quote attribution · 1 verbatim quote · confidence high
reliable expert opinion should . . . be free from internal inconsistencies.
examined Cited as authority (quoted) San Jacinto Methodist Hospital v. Aaron McCoy (3×) also: Cited as authority (rule), Cited "see"
Tex. App. · 2013 · signal: see · quote attribution · 1 verbatim quote · confidence high
the appellee demonstrated to the trial court that at least one of her alleged theories-vicarious liability-had expert support. she cleared the first hurdle, and the appeals court correctly recognized her right to have the entire case move forward.
examined Cited as authority (rule) James Shaffer, CRNA and EPIX Medical Services of Houston, PLLC v. Marquita Jomes, as Power Off Attorney for Shronda Jones (8×) also: Cited "see", Cited "see, e.g."
txctapp1 · 2026 · confidence medium
Dr. Reynolds’s report provided a good faith effort to outline how the breaches of the standard of care led to Shronda’s injuries, which was all that was required. 9 See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013). 11 After a hearing on appellants’ objections and motion to dismiss, the trial court overruled appellants’ objections to Dr. Reynolds’s expert report and denied appellants’ motion to dismiss.
discussed Cited as authority (rule) AOC TX, LLC D/B/A Angels of Care Pediatric Home Health v. Naomi Landeros and Carlos Silva Individually and as Next Friend of O.S., Minor (2×) also: Cited "see"
txctapp8 · 2026 · confidence medium
See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 629 (Tex. 2013) (“[D]irect and vicarious liability theories involve different sets of operative facts because the facts required to establish the defendant’s vicarious liability, i.e., the acts of the agent and his relationship to the principal, differ from the facts required to establish the defendant’s direct liability, i.e., its provision of particular policies and procedures.’”) (summarizing lower court precedent; cleaned up); id. at 632 (distinguishing between “expert reports required for vicarious liability claims, in which me…
discussed Cited as authority (rule) Angela Hilton, Individually and as the Representative of the Estate of Barbara Jackson v. Mark Gibbs, M.D., Paris Orthopedic Clinic, P.A., Mark Campbell, M.D., Andrew Fraser, D.O., PRMC Healthcare Group, Inc., Pia Lippincott, M.D., PRMC ER Group, Inc., and Essent PRMC, L.P., D/B/A Paris Regional Health F/K/A Paris Regional Medical Center
txctapp6 · 2025 · confidence medium
“A valid expert report has three elements: it must fairly summarize the applicable standard of care; it must explain how a physician or health care provider failed to meet that standard; and it must establish the causal relationship between the failure and the harm alleged.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (citing TEX.
discussed Cited as authority (rule) Greg Staats v. Dr. Jamie Singley; DDS Dentures & Implant Solutions; Affordable Dentures & Implants-Fort Worth, P.A.; Affordable Dentures & Implants, Texas, PLLC; And DDS Dentures and Implants
Tex. App. · 2025 · confidence medium
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013); Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex. 2008) (holding that a claimant may serve a report by a new expert to cure any deficiency and is not limited to a report by the original expert); see also Envision Radiology Tex. LP v. Trader, No. 05-20-00529-CV, 2022 WL 2826896 , at *3 (Tex. App.—Dallas July 20, 2022, no pet.) (mem. op.); Keepers v. Smith, No. 01-20-00463-CV, 2022 WL 2347744 , at *16 (Tex. App.—Houston [1st Dist.] June 30, 2022, pet. denied) (mem. op.) (holding that an expert report needs not marshal all the plaint…
cited Cited as authority (rule) Sagora Senior Living, Inc., WTCG Granbury Campus, LLC D/B/A Waterview - the Cove, and Waterview the Cove Assisted Living and Memory Care v. Andrea Wood and Jamie Jackson
Tex. App. · 2025 · confidence medium
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013).
discussed Cited as authority (rule) Austin Behavioral Hospital, LLC Operating as Cross Creek Hospital and Subject to It's Previously Filed Special Appearance, Acadia Healthcare Company, ,Inc. v. Eddie Lee Wilson, and Chester Jackson Sr., as Next Friend for Chester Jackson, Jr., Heather Martin A/N/F CCJ I, Heather Martin A/N/F CCJ, II, Pe'trecia Ray A/N/F D. H.
Tex. App. · 2025 · confidence medium
Nevertheless, “an expert report that adequately addresses at least one pleaded liability theory satisfies the statutory requirements [of the TMLA], and the trial court must not dismiss in such a case.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013).
discussed Cited as authority (rule) Texas Children's Hospital v. Tarshell Scott, Individually and as Surviving Parent and Representative as a Surviving Parent and Representative of the Estate of D. S., a Minor
Tex. App. · 2025 · confidence medium
“An expert report that adequately addresses at least one pleaded liability theory satisfies the statutory requirements, and the trial court must not dismiss in such a case.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013). 9 III.
discussed Cited as authority (rule) Jared Bush, Jr. v. Columbia Medical Center of Arlington Subsidiary, L.P. D/B/A Medical City Arlington and Hca Inc.
Tex. · 2025 · confidence medium
As Zamarripa held, without the right of control, the effect of a hospital policy on physicians cannot be presumed. 35 Discounting physician independence, the Court 34 We did not backtrack from years of vigilantly guarding against third-party liability for injuries caused by another in Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 629 (Tex. 2013).
discussed Cited as authority (rule) Renaissance Medical Foundation v. Rebecca Lugo, Individually and as Next Friend of I.B.
Tex. · 2025 · confidence medium
Therefore, when an NPHO is sued because of an employee physician’s alleged negligence, its vicarious liability will depend on whether the plaintiff can prove that an exercise of control over the alleged negligence would not interfere with the physician’s exercise of independent medical judgment.14 Lugo correctly observes that we have rejected as “unworkable” a general framework for vicarious liability that involves “isolating the 13 See, e.g., Bush, ___ S.W.3d at ___, slip op. at 23-28; Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 629 (Tex. 2013) (“[D]irect and vicarious liability…
discussed Cited as authority (rule) Art Tontiplaphol, M.D.; Bongsun \Sunny\" Rich; And Methodist Healthcare System of San Antonio
unknown court · 2025 · confidence medium
In Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 629 (Tex. 2013), the healthcare defendant argued that a trial court must dismiss a claim if the expert report did not address both direct and vicarious lability theories.
cited Cited as authority (rule) Justin I Enterprises, LLC, D/B/A Longmeadow Healthcare Center v. Katy Gierczak, Individually and on Behalf of the Estate of Josephine Chatman
Tex. App. · 2025 · confidence medium
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013).
cited Cited as authority (rule) ARUP Laboratories, Inc. v. James H. Crawford & Rita Annette Crawford
Tex. App. · 2024 · confidence medium
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013).
discussed Cited as authority (rule) Cornelius Butler, Individually and on Behalf of the Estate of Betty Butler v. Tyler OPS LTC., Inc. D/B/A Petal Hill Nursing & Rehabilitation (2×)
Tex. App. · 2024 · confidence medium
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013).
discussed Cited as authority (rule) Alexander v. Southern Health Partners Inc
N.D. Tex. · 2024 · confidence medium
CODE §§ 74.001 et seq. 94 Passmore v. Baylor Health Care Sys., 823 F.3d 292, 293 (5th Cir. 2016) (discussing § 74.351). 95 Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). cases brought in Texas courts never have motions to dismiss because either (1) the plaintiff has timely served an expert report (which contains evidence more than sufficient enough to survive a motion to dismiss) or (2) the plaintiff has not timely served an expert report (which means the claim is procedurally dismissed by statute).
discussed Cited as authority (rule) Shree Shrestha, M.D. and HMIH Cedar Crest, LLC D/B/A Cedar Crest Hospital & RTC v. Claudia Johnson, Individually and as Representative of the Estate of Tony Johnson, Jr.
Tex. App. · 2024 · confidence medium
An expert report adequate “even if as to one theory only, entitles the claimant to proceed with a suit against the physician or health care provider.” Richter v. Downey, 565 S.W.3d 847, 855 (Tex. App.—Austin 2018, no pet.) (quoting Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013)).
cited Cited as authority (rule) Willow SNF, LLC D/B/A Willow Rehab & Nursing and Advanced HCS, LLC v. Anyonna Hardimon, on Behalf of Jessie Mae Turner
Tex. App. · 2024 · confidence medium
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013).
discussed Cited as authority (rule) Tammy Roe, as the of the Estate of Michael Kevin Roe v. El-Cid Organo Tajon, M.D. and Texas Health Harris Methodist Hospital
Tex. App. · 2023 · signal: cf. · confidence medium
Corp. v. Lopez, No. 13-13-00165-CV, 2014 WL 3542094 , at *6–7 (Tex. App.—Corpus Christi–Edinburg July 17, 2014, no pet.) (mem. op.) (similar); cf. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013) (noting that “[d]iscovery allows a claimant to refine her pleadings to abandon untenable theories and pursue supported ones,” and while “a full development of all liability theories may be required for pretrial motions or to convince a judge or jury during trial, there is no such requirement at the expert[-]report stage”).
examined Cited as authority (rule) Dallas Plastic Surgery Institute, Inc. v. Walid Zoubi, Individually and as Heir to and Representive of the Estate of Our Alahmad, And Walid Zoubi, as Guardian and Next Friend of GZ, LZ, MZ and KZ, Minors (4×) also: Cited "see"
Tex. App. · 2023 · confidence medium
Chapter 74’s goal is “to deter baseless claims, not to block earnest ones.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013).
examined Cited as authority (rule) Tyler OPS LTC., Inc., D/B/A Petal Hill Nursing & Rehabilitation v. Cornelius Butler, Individually and on Behalf of the Estate of Betty Butler (3×) also: Cited "see"
Tex. App. · 2023 · confidence medium
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013).
discussed Cited as authority (rule) Woodland Nursing Operations, LLC F/D/B/A Eastland Nursing & Rehabilitation and Trinity Healthcare, LLC v. Misty Vaughn, Individually and on Behalf of the Estate of Thomas Vaughn
Tex. App. · 2022 · confidence medium
Jacksboro, 2021 WL 1421431 , at *8 (“Succinctly, the Texas Supreme Court held that a report that satisfies the requirements, ‘even if as to one theory only, entitles the claimant to proceed with a suit against the physician or health care provider.’” (quoting Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013))).
cited Cited as authority (rule) Marvella Loya v. Hickory Trail Hospital, L.P.
Tex. App. · 2022 · confidence medium
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013).
cited Cited as authority (rule) Almendra Fernandez, BS IONM, T-Med, L.P. D/B/aMonitoring Concepts And T-Med, L.P. v. Sylvia Gonzales
Tex. App. · 2022 · confidence medium
Zachariah, 2022 WL 1509303 , at *3 (internal quotation omitted) (quoting Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013)).
discussed Cited as authority (rule) Carly Cassady v. Kimberly N. Haynes, D.M.D. and Haynes Dental, PLLC D/B/A Aspen Dental
Tex. App. · 2022 · confidence medium
“A valid expert report has three elements: it must fairly summarize the applicable standard of care; it must explain how a physician or health care provider failed to meet that standard; and it must establish the causal relationship between the failure and the harm alleged.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (citing TEX.
examined Cited as authority (rule) Aveen B. Zachariah, D.O., and Austin Regional Clinic, P.A. v. Alfred J. Durtschi, Individually and as of the Estate of Doris A. Liesenfelt (3×) also: Cited "see, e.g."
Tex. App. · 2022 · confidence medium
Two functions of the expert report are to “inform the defendant of the specific conduct the plaintiff has called into question” and “provide a basis for the trial court to conclude that the claims have merit.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (quoting American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)); see Baty v. Futrell, 543 S.W.3d 689 , 693–93 (Tex. 2018) (describing “Palacios framework” for reviewing expert report’s adequacy).
cited Cited as authority (rule) Methodist Hospitals of Dallas D/B/A Methodist Mansfield Medical Center v. Cynthia Yates, Individually and as Representative of the Estate of Hubert Yates
Tex. App. · 2022 · confidence medium
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013). –20– Waxahachie v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.); see also Am.
discussed Cited as authority (rule) North Cypress Medical Center Operating Company, Ltd., D/B/A North Cypress Medical Center and Dr. Ozochukwu Odili v. Randy White (2×)
Tex. App. · 2022 · confidence medium
P’ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013).
examined Cited as authority (rule) Dr. Harvinder Bedi and Healthcare Specialists, LLP D/B/A Neonatal Consultants, LLP v. Rebekah Cornett and Kalum Cornett Individually and as Personal Representative of the Estate of Delaney Cornett (3×) also: Cited "see"
Tex. App. · 2021 · confidence medium
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013).
discussed Cited as authority (rule) William Edgar Cooney v. Firas M. Abdel-Rahman
Tex. App. · 2021 · confidence medium
REVERSED AND REMANDED. _________________________ HOLLIS HORTON Justice Submitted on September 1, 2021 Opinion Delivered November 4, 2021 Before Golemon, C.J., Kreger and Horton, JJ. 24 See Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). 14
discussed Cited as authority (rule) Alexandra Boske, M.D. St. David's Neurology, PLLC Gayatri Velayudhan Nair, M.D. And Austin Infectious Disease Consultants, P.A. v. Kristen Rougeau
Tex. App. · 2021 · confidence medium
An “expert report” is a “written report by an expert that provides a fair summary of the expert’s opinions regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal 8 relationship between that failure and the injury, harm, or damages claimed.” See § 74.351(r)(6); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013).
discussed Cited as authority (rule) Wanda J. McBride v. Dr. Pavan Rao Saridena
Tex. App. · 2021 · confidence medium
A “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.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013) (quoting Palacios, 46 S.W.3d at 879 ).
Retrieving the full opinion text from the archive…
CERTIFIED EMS, INC. D/B/A CPNS Staffing, Petitioner,
v.
Cherie POTTS, Respondent
11-0517.
Texas Supreme Court.
Feb 15, 2013.
392 S.W.3d 625
Debra Ibarra Mayfield, Harris County Civil Courts at Law # 1, Harris County Civil Courthouse, Houston, TX, Laura Denise Wilson Slay and Nathan Montgomery Rymer, Rymer Moore Jackson & Echols, P.C., Houston, TX, for Certified EMS, Inc., Clinton E. Wells Jr., John T. McDowell, McDowell Wells LLP, Houston, TX, Vincent L. Marable III, Paul Webb PC, Wharton, TX, for Cherie Potts.
Jefferson.
Cited by 219 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: #41,419 of 633,719
Citer courts: Court of Appeals of Texas (2)
Chief Justice JEFFERSON

delivered the opinion of the Court.

A patient alleged that a hospital nurse, who was temporarily placed with the hospital by a staffing service, assaulted her. The patient sued under the Texas Medical Liability Act, asserting that the staffing service was directly and vicariously liable for the nurse’s conduct. The staffing service sought dismissal because the patient’s expert reports did not specify how the service was directly negligent. The service has not challenged, in this Court, the reports’ adequacy concerning its vicarious liability.

The trial court denied the motion to dismiss, and the court of appeals affirmed. It held that because the reports support a theory of vicarious liability against the staffing service, the lack of a description supporting direct liability is not fatal to the claimant’s maintaining her cause of action. We agree with the court of appeals, but for different reasons. Accordingly, we affirm the court of appeals’ judgment.

I. Background

Cherie Potts was admitted to Christus St. Catherine’s Hospital for treatment of a kidney infection. One of the nurses assigned to her care, Les Hardin, was referred to the hospital by a staffing service owned by Certified EMS. Potts claims that Hardin assaulted her sexually and verbally during her hospital stay. Potts alleges that the assaults caused her anxiety and physical pain. She sued the hospital, Hardin, and Certified EMS. [1]

Potts claimed that Certified EMS was directly liable for Hardin’s conduct because it failed to properly train and oversee its staff, enforce applicable standards of care, and employ protocols to ensure quality patient care and adequate staff supervision. Potts also alleged that Certi-[*627] fled EMS was vicariously liable under the theory of respondeat superior.

Because Potts sued under the Texas Medical Liability Act, she was required to serve each defendant with an expert report that met certain statutory requirements. See Tex. Civ. Prac. & Rem.Code § 74.351 (outlining requirements and guidelines for expert reports in health care liability claims). Potts timely served reports from Nurse S. Francis Scholl Foster and Dr. Kit Harrison, Ph.D. Certified EMS challenged the reports, and the trial court gave Potts thirty days to cure the alleged deficiencies. See id. § 74.351(c). In response, Potts supplemented Nurse Foster’s original report and provided a new one from Dr. Milton Altschuler, M.D.

The relevant portions of Nurse Foster’s supplemented report outline the appropriate standard of care for nurses and nursing agencies, describe the steps that should have been taken by Hardin and Certified EMS to prevent the assaults, and conclude that Hardin’s and Certified EMS’s failures caused Potts’s injuries. Dr. Altschuler’s report states that Hardin engaged in sexually inappropriate and intrusive conduct, causing the injuries that Potts has alleged.

Certified EMS objected to the newly submitted reports and moved to dismiss on numerous grounds, among them that the reports omitted any explicit reference to Certified EMS’s direct liability for Hardin’s conduct.

The trial court denied the motion, and Certified EMS appealed. See Tex. Civ. Prac. & Rem.Code § 51.014(a)(9) (allowing interlocutory appeal of an order denying relief sought by motion under section 74.351(b) in certain circumstances). The court of appeals affirmed, holding (as relevant here) that “if the claimant timely serves an expert report that adequately addresses at least one liability theory against a defendant health care provider, the suit can proceed, including discovery, without the need for every liability theory to be addressed in the report.” 355 S.W.3d 683, 693. [2] We granted Certified EMS’s petition for review, which raises a single issue: Must a claimant in a health care liability suit provide an expert report for each pleaded liability theory? 55 Tex. Sup. Ct. J. 461 (Mar. 30, 2012).

II. Conflict Among the Courts of Appeals

Numerous appellate decisions have discussed the extent to which an expert report must examine every liability theory alleged. The cases reach varied results. Several courts of appeals, like the court of appeals in this case, have determined that a claimant’s expert report(s) need address only a single theory for the entire suit to proceed. [3] Some of those decisions rely on[*628] Potts, either indirectly or explicitly. [4] The Potts court focused on the Act’s plain language, specifically on the requirement that an expert report be served “[i]n a health care liability claim,” which the statute further defines as a “cause of action.” See 355 S.W.3d at 690-92; see also Tex. Civ. Prac. & Rem.Code § 74.001(a)(13) (“ ‘Health care liability claim’ means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.”). Relying on our discussion of “cause of action” in In re Jorden, 249 S.W.3d 416 (Tex.2008), the Potts court reasoned that the Act requires an expert report only for each set of operative facts that give rise to one or more bases for suing. 355 S.W.3d at 691. Thus, if an expert report adequately addresses a single liability theory within a cause of action, the entire case may proceed. Id.

Other courts insist that an expert report must specifically address each liability theory. [5] Unsupported theories must be dismissed. Those courts also look to the statute’s language. Some interpret “health care liability claim” to mean a sin[*629] gle theory of liability. [6] Thus, when the statute requires that a “liability claim” be supported by an expert report, these courts reason that the report must address each liability theory. Other courts of appeals interpret “health care liability claim” to mean a cause of action, or set of operative facts, like the Potts court did. But unlike the Potts court, they reason that different theories of liability must be based on different sets of operative facts and each, therefore, requires its own expert report. In that respect, several cases have held that direct and vicarious liability theories involve different sets of operative facts because “the facts required to establish the defendant’s vicarious liability, i.e., the acts of [the agent and his relationship] to [the principal], differ from the facts required to establish the ... defendant’s direct liability, i.e., [its] provision of particular policies and procedures.” Fung v. Fischer, 365 S.W.3d 507, 522 (Tex.App.Austin 2012, no pet.); see also MSHC the Waterton at Cowhorn Creek, LLC v. Miller, 391 S.W.3d 551, 560 (Tex.App.-Texar-kana, no pet.) (“The facts required to establish direct liability here are qualitatively different from the facts necessary to establish ... vicarious liability_”).

Still other courts have addressed questions that vary slightly from the one before us today. These courts have engaged in analyses that demonstrate the need to definitively resolve the question of how expert reports treat multiple theories of liability. [7]

These conflicts give us jurisdiction over this interlocutory appeal. Tex. Gov’t Code § 22.225(c). [8]

III. Addressing Theories of Liability

Certified EMS contends that if a claimant’s report does not adequately address each asserted theory, the trial court must dismiss those theories that are unsupported by a report. Thus, if a plaintiffs allegations include both direct and vicarious liability claims, the report is deficient if it does not cover both. We are not persuaded.

[*630] Several courts of appeals rely on the statute’s use of the term “cause of action” to decide this issue. When we discussed the phrase in In re Jorden, we noted that it “generally applies to facts, not filings.” Jorden, 249 S.W.3d at 421. We also looked to Black’s Law Dictionary, which “defines ‘cause of action’ as [a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Id. (quoting Black’s Law DictionaRY 235 (8th ed.2004)). From this, several appellate courts have relied on “operative facts” to reach opposing results — either that an expert report must address every pleaded liability theory, [9] or that it need not. [10] The competing conclusions demonstrate the pitfalls of this approach.

The focus on operative facts raises more questions than it answers. Are the “operative facts” underlying alleged liability for failure to train different from the underlying allegations of vicarious liability for medical malpractice? The court of appeals here said no, [11] but others would say yes. [12] Would each of Potts’s direct liability theories against Certified EMS — for failing to train its employees, failing to enforce accepted standards of care, and failing to employ protocols to ensure quality care for patients — require its own expert report, because the facts underlying each allegation may differ? Will, as the cases suggest, the relevant operative facts be disputed in every case, leading to additional time, expense, and interlocutory appeals?

We appreciate the courts of appeals’ reasoning, but decline to follow that approach. No provision of the 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.” Tex. Civ. Prac. & Rem.Code § 74.351(a). Once an expert report is timely served and properly challenged, the trial court:

shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report.

Id. § 74.351(l); see also Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex.2012) (same). A valid expert report has three elements: it must fairly summarize the applicable standard of care; it must explain how a physician or health care provider failed to meet that standard; and it must establish the causal relationship between the failure and the harm alleged. Tex. Civ. Prac. & Rem.Code § 74.351(r)(6); see Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.2011). A report that satisfies these requirements, even if as to one theory only, entitles the claimant to proceed with a suit against the physician or health care provider.

The report serves two functions. “First, the report must inform the defendant of the specific conduct the plaintiff has called into question. Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit.” Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001).

A report need not cover every alleged liability theory to make the defendant aware of the conduct that is at issue. Pa-lacios recognized that an expert report[*631] does not require litigation-ready evidence. Rather, “to avoid dismissal ... [t]he 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.” Id. For the particular liability theory addressed, the report must sufficiently describe the defendant’s alleged conduct. Such a report both informs a defendant of the behavior in question and allows the trial court to determine if the allegations have merit. If the trial court decides that a liability theory is supported, then the claim is not frivolous, and the suit may proceed.

IV. Legislative Intent

This approach is consistent with the Legislature’s intent. See Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011) (“Our primary objective in construing statutes is to give effect to the Legislature’s intent.”). In amending the Act, the Legislature sought to reduce “the excessive frequency and severity of ... claims,” but to “do so in a manner that will not unduly restrict a claimant’s rights any more than necessary to deal with the crisis.” Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), (3), 2003 Tex. Gen. Laws 847, 884. In accordance with this goal, we have opined that one purpose of the report requirement is “to expeditiously weed out claims that have no merit.” Loaisiga, 379 S.W.3d at 263. We have also stated that the purpose of evaluating expert reports is “to deter frivolous claims, not to dispose of claims regardless of their merits.” Scores-by, 346 S.W.3d at 554; see also Loaisiga, 379 S.W.3d at 258 (recognizing that the expert report “requirements are meant to identify frivolous claims and reduce the expense and time to dispose of any that are filed”); In re Jorden, 249 S.W.3d at 421.

Our holding today satisfies these purposes. If a health care liability claim contains at least one viable liability theory, as evidenced by an expert report meeting the statutory requirements, the claim cannot be frivolous. The Legislature’s goal was to deter baseless claims, not to block earnest ones. Potts demonstrated to the trial court that at least one of her alleged theories — vicarious liability — had expert support. She cleared the first hurdle, and the appeals court correctly recognized her right to have the entire case move forward. 355 S.W.3d at 693.

V. Efficient and Practical Litigation

Certified EMS argues that this holding will prolong litigation by forcing defendants to defend meritless claims. For two reasons, we disagree. First, if there is at least one valid theory, the defendant will be engaged in further litigation regardless of the merits of the remaining theories. Defending those theories would not be unduly burdensome. The converse is not true. To require an expert report for each and every theory would entangle the courts and the parties in collateral fights about intricacies of pleadings rather than the merits of a cause of action, creating additional expense and delay as trial and appellate courts parse theories that could be disposed of more simply through other means as the case progresses. Cf. Scoresby, 346 S.W.3d at 549 (applying a “lenient standard” to a plaintiffs right to cure a deficient report, noting that approach “avoids the expense and delay of multiple interlocutory appeals and assures a claimant a fair opportunity to demonstrate that his claim is not frivolous”).

This leads to our second point. The expert report requirement is a threshold mechanism to dispose of claims lacking merit, but reports are not the only means to address weak subsets of those claims.[*632] The original and amended petitions inform a defendant of the claims against it and limit what a plaintiff may argue at trial. Discovery allows a claimant to refine her pleadings to abandon untenable theories and pursue supported ones. Summary judgment motions permit trial courts to dispose of claims that lack evidentiary support. But while a full development of all liability theories may be required for pretrial motions or to convince a judge or jury during trial, there is no such requirement at the expert report stage. See Palacios, 46 S.W.3d at 879.

It may be difficult or impossible for a claimant to know every viable liability theory within 120 days of filing suit, and the Act reflects this reality. It strictly limits discovery until expert reports have been provided, and we have held that the statute’s plain language prohibits presuit depositions authorized under Rule 202 of the Texas Rules of Civil Procedure. See Tex. Civ. Prac. & Rem.Code § 74.351(s); Tex.R. Civ. P. 202; In re Jorden, 249 S.W.3d at 418. The Act requires the expert report to summarize the expert’s opinions “as of the date of the report,” recognizing that those opinions are subject to further refinement. Id. § 74.351(r)(6). Discovery can reveal facts supporting additional liability theories, and the Act does not prohibit a claimant from amending her petition accordingly. Under Certified EMS’s reasoning, a claimant would have to serve an expert report each time a new theory is discovered. Not only would that be impractical, it would prohibit altogether those theories asserted more than 120 days after the original petition was filed— effectively eliminating a claimant’s ability to add newly discovered theories. See id. § 74.351(a) (requiring that expert report be filed “not later than the 120th day after the date the original petition was filed”). We see no indication that the Legislature intended such a result.

In sum, an expert report that adequately addresses at least one pleaded liability theory satisfies the statutory requirements, and the trial court must not dismiss in such a case. To the extent other cases hold differently, we disapprove of them.

VI. Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 (Tex. 2008) (per curiam)

Finally, we address Certified EMS’s argument that Gardner, precludes the result we reach today. 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). Certified EMS argues that because Potts’s theories are not purely vicarious, Gardner implies that each must be addressed in an expert report.

We disagree that Gardner compels such a conclusion. Our statement 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. But we did not address the effect of such a report in a claim involving both vicarious and direct liability. To clarify, when 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 conduct under the vicarious theory. And if any liability theory has been adequately covered, the entire case may proceed.

VII. Conclusion

Because Potts’s reports sufficiently addressed one liability theory, the trial court[*633] correctly denied the motion to dismiss. We affirm the court of appeals’ judgment. Tex.R.App. P. 60.2(a).

1

. Christas St. Catherine’s Hospital and Les Hardin are not parties to this interlocutory appeal.

2

. The court of appeals also determined that the expert reports that Potts provided to Certified EMS sufficiently addressed her vicarious liability theory, but failed to address her direct liability theories. 355 S.W.3d at 686. Neither party has challenged those conclusions.

3

. See Laurel Ridge Treatment Ctr. v. Garcia, No. 04-12-00098-CV, 2012 WL 3731748, at *1 (Tex.App.-San Antonio Aug. 29, 2012, pet. filed) (mem.op.) (holding that the trial court did not abuse its discretion when it denied defendant’s motion to dismiss because an “expert report is required to be adequate with regard to only one liability theory within a cause of action in order for the claimant to proceed with the entire cause of action against the defendant”); Nexion Health at Duncanville, Inc. v. Ross, 374 S.W.3d 619, 626 (Tex.App.-Dallas 2012, pet. denied) (holding that an expert report need “not address each 'specific act of negligence’ pleaded by a plaintiff ... [to] satisfy the two intended purposes of the expert report requirement”); Univ. of Tex. Med. Branch at Galveston v. Qi, 370 S.W.3d 406, 415-16 (Tex.App.-Houston[*628] [14th Dist.] 2012, no pet.)(referencing the Potts court’s reasoning when it held that an expert report need not address “every act or omission mentioned in the pleadings, so long as at least one liability theory within each cause of action is sufficiently addressed”); Clear Lake Rehab. Hosp., L.L.C. v. Karber, No. 01-09-00883-CV, 2010 WL 987758, at *5 n. 7 (Tex.App.-Houston [1st Dist.] Mar. 18, 2010, no pet.) (mem.op.) (suggesting that a report that is adequate as to one theory of liability can move an entire cause of action past the expert report stage).

4

. See, e.g., Laurel Ridge Treatment Ctr., 2012 WL 3731748, at *1; Nexion Health, 374 S.W.3d at 626-27.

5

. See MSHC the Waterton at Cowhorn Creek, LLC v. Miller, 391 S.W.3d 551, 560 (Tex. App.-Texarkana, no pet.) (holding that the claimant's expert reports must address vicarious and direct liability claims separately because the theories were based on two different sets of operative facts, which were "qualitatively different from the facts necessary to establish [the employer's] vicarious liability for the acts or omissions of its staff”); Fung v. Fischer, 365 S.W.3d 507 (Tex.App.-Austin 2012, no pet.) (finding that because the claimant's theories of liability were both vicarious and direct and thus based on different sets of operative facts, the expert report that only addressed the employee’s conduct was not sufficient to impose direct liability on the employer); Hendrick Med. Ctr. v. Miller, No. 11—11—00141—CV, 2012 WL 314062, at *3 (Tex.App.-East-land Jan. 26, 2012, no pet.) (mem. op.) (holding that direct and vicarious liability claims must be evaluated separately to determine whether each claim was sufficiently supported by an expert report); River Oaks Endoscopy Ctrs., L.L.P. v. Serrano, No. 09-10-00201-CV, 2011 WL 303795, at *2 (Tex. App.-Beaumont Jan. 27, 2011, no pet.) (mem. op.) (holding that a claimant alleging theories of direct and vicarious liability must provide an expert report that addresses all theories so that the defendant can be made aware of the specific conduct being called into question); Beaumont Bone & Joint, P.A. v. Slaughter, No. 09-09-00316-CV, 2010 WL 730152, at *3-4 (Tex.App.-Beaumont Mar. 4, 2010, pet. denied) (mem.op.) (holding that although vicarious liability claims were sufficiently addressed in an expert report, direct liability claims were not, and should have been dismissed); Azle Manor, Inc. v. Vaden, No. 2-08-115-CV, 2008 WL 4831408, at *10 (Tex.App.-Fort Worth Nov. 6, 2008, no pet.) (mem.op.) (holding that although vicarious liability claims against two doctors were sufficiently addressed in two expert reports, the direct liability claims were not, and thus the trial court abused its discretion when it denied the defendant doctors' motion to dismiss the direct liability claims).

6

. See, e.g., Hendrick Med. Ctr., 2012 WL 314062, at *3.

7

. See Marino v. Wilkins, No. 01-11-00835-CV, 2012 WL 749997, at *8-10 (Tex.App.Houston [1st Dist.] Mar. 8, 2012, pet. denied) (holding, under the Potts reasoning, that a health care liability suit may proceed under one liability theory if the defendant does not move to dismiss all theories of liability in his challenge to the expert reports); Petty v. Churner, 310 S.W.3d 131, 138 (Tex.App.-Dallas 2010, no pet.) (concluding that the trial court properly dismissed direct liability claims because the vicarious and direct liability theories were based on two different standards of care, and an expert report that only addressed the vicarious theory did not meet the statutory requirements); Obstetrical and Gynecological Assocs., P.A. v. McCoy, 283 S.W.3d 96, 105-06 (Tex.App.-Houston [14th Dist.] 2009, pet. denied) (deciding that a claimant need not provide an expert report addressing an employer’s conduct if the claimant only seeks to hold the employer liable under a vicarious liability theory, noting that there is a distinction between allegations of liability made against the employer based on the conduct of employees versus allegations of direct liability based on the conduct of the employer entity itself); Methodist Charlton Med. Ctr. v. Steele, 274 S.W.3d 47, 50-51 (Tex.App.-Dallas 2008, pet. denied) (holding that because the claimant failed to timely serve expert reports related to the direct liability claims against defendants that were added in an amended petition, those particular claims should have been dismissed; but, the vicarious liability claims, based on the conduct of a nurse employee, were addressed in a timely report and could move forward).

8

. See also Tex. Gov't Code § 22.225(e) (noting that "one court holds differently from another when there is inconsistency in their respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants”).

9

. See, e.g., MSHC the Waterton, 391 S.W.3d at 558-59.

10

. See, e.g., Qi, 370 S.W.3d at 415-16.

12

. See, e.g., MSHC the Waterton, 391 S.W.3d at 558-59; Fung, 365 S.W.3d at 522.