Ob-Gyn Assoc, P.A. v. McCoy (Tex.App.- Houston [14th Dist.] Apr. 9, 2009)(Brown)
AFFIRMED: Opinion by Justice Jeff Brown
Panel: Justice Sullivan, Justice Brown, Justice Boyce
Before Justices Brown, Boyce and Sullivan
14-08-00762-CV Obstetrical and Gynecological Associates, P.A. v. Andre McCoy, Individually and as
Permanent Guardian of Shannon Miles McCoy, an incapacitated person
Appeal from Probate Court No 3 of Harris County
Trial Court Judge: Rory R. Olsen
O P I N I O N
In this accelerated, interlocutory appeal, Obstetrical and Gynecological Associates, P.A., (AOGA@) contends
that the trial court abused its discretion by denying OGA=s motion to dismiss under Chapter 74 of the Texas
Civil Practice and Remedies Code, because the appellee failed to serve an expert report specifically
addressing OGA=s conduct. OGA contends that an expert report addressing OGA=s conduct was required
because the appellee alleged not only that OGA was vicariously liable for the conduct of others, but also that
OGA was directly liable for health care liability claims. For the reasons explained below, we disagree and
affirm the trial court=s judgment.
Background
In September 2004, Shannon Miles McCoy was admitted to Woman=s Hospital of Texas to give birth to her
first child. There, she was treated by obstetricians Mark A. Jacobs, M.D., and Debra Clark Gunn, M.D, both
employees of OGA. Shannon experienced complications and ultimately suffered serious injuries.
In 2006, appellee Andre McCoy, individually and as permanent guardian of Shannon Miles McCoy, brought
this lawsuit against OGA, Dr. Jacobs, Dr. Gunn, and others, for alleged medical negligence in the care and
treatment rendered to Shannon. In the lawsuit, McCoy alleged that OGA was vicariously liable for the conduct
of Drs. Jacobs and Gunn under the doctrine of respondeat superior and as provided in the Texas
Professional Association Act. McCoy also served four separate expert reports prepared by Molly Brewer, M.D.
Dr. Brewer prepared one expert report for each of the originally named defendants, except for OGA. None of
the expert reports specifically addressed OGA=s conduct. OGA did not file any objections to Dr. Brewer=s
reports.
In January 2008, McCoy filed a third amended petition that included additional allegations of liability against
OGA. McCoy alleged that OGA and Drs. Jacobs and Gunn were grossly negligent, that Drs. Jacobs and
Gunn were vice-principals of OGA, and that OGA Aauthorized and/or ratified@ the conduct of Drs. Jacobs
and Gunn. McCoy further alleged that Drs. Jacobs and Gunn were acting in the course and scope of their
employment at the time they cared for Shannon Miles McCoy in September 2004.
On February 22, 2008, OGA filed a motion to dismiss asserting that McCoy failed to timely serve an expert
report as required by Chapter 74 of the Texas Civil Practice and Remedies Code. McCoy=s response to the
motion included, among other things, the representation that Ano direct negligence claim has been advanced
against Defendant OGA and Plaintiffs have only alleged vicarious liability against Defendant OGA.@
Therefore, McCoy asserted, it was not necessary to mention OGA by name in the expert reports concerning
Drs. Jacobs and Gunn, because OGA, as the doctors= employer, was sufficiently implicated in those reports.
The trial court initially granted OGA=s motion to dismiss. McCoy then filed a motion for reconsideration, and
on July 25, 2008, the trial court granted the motion for reconsideration and denied OGA=s motion to dismiss.
This interlocutory appeal followed.
I. McCoy=s Challenge to Jurisdiction
Before reaching the merits of OGA=s appeal, we must first address McCoy=s assertion that this court lacks
jurisdiction to hear OGA=s appeal because the trial court granted a request for a thirty-day extension.
Specifically, McCoy contends that he included in his motion for reconsideration a request for a thirty-day
extension to cure any alleged deficiencies in his expert reports as provided under section 74.351(c). See Tex.
Civ. Prac. & Rem. Code Ann. ' 74.351(c) (Vernon Supp. 2008) (providing that the trial court may grant one
thirty-day extension to the claimant to cure deficiencies in an expert report). Because the trial court granted
the motion for reconsideration, McCoy argues, it granted this requested relief and therefore its order is not
appealable. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(9) (Vernon 2008) (permitting interlocutory
appeal of order that denies relief sought under section 74.351(b), Aexcept that an appeal may not be taken
from an order granting an extension under [s]ection 74.351@); Ogletree v. Matthews, 262 S.W.3d 316, 321
(Tex. 2007) (holding that if a deficient report is served and the trial court grants a thirty-day extension, that
decision is not subject to appellate review even if it is coupled with a motion to dismiss).
We disagree that we have no jurisdiction over this appeal. First, and most important, the trial court=s order
does not grant any extension of time to McCoy. Second, McCoy requested the relief of an extension
alternatively if the trial court found that Dr. Brewer=s expert reports were deficient. During the hearing on the
motion for reconsideration, the trial court indicated that it did not believe a report as to OGA was necessary,
and that is why it denied OGA=s motion to dismiss. Nothing in the record indicates that the trial court found
Dr. Brewer=s expert reports to be deficient. Therefore, the trial court did not need to reach McCoy=s
alternative request for an extension of time to cure deficient expert reports. Accordingly, because the trial
court did not grant any extension of time to cure deficiencies under section 74.351(c), this court has
jurisdiction over OGA=s interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(9).
II. Did the Trial Court Err in Denying OGA=s Motion to Dismiss?
OGA contends that the trial court abused its discretion in denying its motion to dismiss, because McCoy=s
expert reports wholly failed to implicate OGA. OGA asserts that the plain language of section 74.351 requires
an expert report addressing each health care provider sued, and it is undisputed that OGA is a health care
provider within chapter 74. Therefore, OGA maintains, all of McCoy=s claims against it, including both the
vicarious and the direct-liability claims, should have been dismissed. At a minimum, however, OGA argues
that the direct-liability claims alleged in McCoy=s third amended petition must be dismissed for McCoy=s
failure to provide an expert report specifically addressing OGA=s conduct.
In response, McCoy claims that OGA has waived all of its objections to Dr. Brewer=s reports because OGA did
not timely file its objections. Additionally, McCoy argues that Dr. Brewer=s reports criticizing the conduct of
Drs. Jacobs and Gunn sufficiently implicated OGA because the doctors are OGA=s employees, OGA is
specifically identified as Dr. Gunn=s employer in the reports, and OGA is vicariously liable for the negligence
of its physician employees. Finally, McCoy asserts that the only claims made against OGA are based on
vicarious responsibility for the doctors= conduct, not direct liability based on OGA=s negligence.
A. Standard of Review
When a trial court rules on a defendant health care provider=s motion to dismiss a health care liability claim,
we review the ruling for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 877B78 (Tex. 2001); Rittmer v. Garza, 65 S.W.3d 718, 721 (Tex. App.BBHouston [14th Dist.]
2001, no pet.). An abuse of discretion occurs when the trial court acts in an unreasonable and arbitrary
manner, or when it acts without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d
56, 62 (Tex. 2003). A trial court will be deemed to have acted arbitrarily and unreasonably if the trial court
could have reached only one decision, yet reached a different one. Teixeira v. Hall, 107 S.W.3d 805, 807
(Tex. App.BBTexarkana 2003, no pet.). To that end, a trial court abuses its discretion when it fails to analyze
or apply the law correctly. In re Sw. Bell Tel. Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007) (citing In re Kuntz,
124 S.W.3d 179, 181 (Tex. 2003)). To the extent resolution of the issue presented requires interpretation of
the statute, we review the ruling under a de novo standard. See Buck v. Blum, 130 S.W.3d 285, 290 (Tex.
App.CHouston [14th Dist.] 2004, no pet).
B. The Expert Report Requirement
Under former section 74.351(a) of the Civil Practice and Remedies Code, a claimant in a health care liability
claim was required to serve on each party or the party=s attorney, not later than the 120th day after the date
the claim was filed, one or more expert reports, with the curriculum vitae of each expert listed in the report.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of
May 18, 2005, 79th Leg., ch. 635, ' 1, 2005 Tex. Gen. Laws 1590, 1590 (current version at Tex. Civ. Prac. &
Rem. Code Ann. ' 74.351(a)).[1] Each physician or health care provider sued must be addressed in an expert
report. Id. Within chapter 74, a professional association is considered a Ahealth care provider.@ Tex. Civ.
Prac. & Rem. Code Ann. ' 74.001(a)(12) (Vernon 2005).
Failure to timely serve an expert report as to a particular defendant results in the trial court=s dismissal of
the claims against that defendant with prejudice, along with the award of reasonable attorney=s fees and court
costs to the defendant. Id. _ 74.351(b). In fact, if the plaintiff does not timely serve an expert report as to a
particular defendant, the trial court has no discretion to do anything other than dismiss the case with
prejudice. See id.; Estate of Regis ex rel. McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67B68
(Tex. App.BBHouston [14th Dist.] 2006, no pet.).
Under section 74.351(r)(6), an expert report is defined as a written report by an expert that provides a fair
summary of the expert=s opinions regarding (1) the applicable standard of care; (2) the manner in which the
care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury,
harm, or damages claimed. Tex. Civ. Prac. & Rem. Code _ 74.351(r)(6); Patel v. Williams ex rel. Estate of
Mitchell, 237 S.W.3d 901, 904 (Tex. App.CHouston [14th Dist.] 2007, no pet.). An expert report need not
marshal all the plaintiff=s proof, but it must include the expert=s opinion on each of these statutorily required
elements. Palacios, 46 S.W.3d at 878.
With this in mind, we now turn to our analysis of OGA=s issue.
C. Analysis
1. Waiver
As a threshold matter, we must address McCoy=s claim that OGA waived all of its objections to Dr. Brewer=s
reports. McCoy points out that a defendant whose conduct is Aimplicated@ in an expert report must file and
serve any objection to the sufficiency of the expert report not later than the twenty-first day after the date the
report is served, or all objections are waived. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.01, 2003
Tex. Gen. Laws 847, 875, amended by Act of May 18, 2005, 79th Leg., ch. 635, ' 1, 2005 Tex. Gen. Laws
1590, 1590 (current version at Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(a) (Vernon Supp. 2008)). McCoy
asserts that OGA did not object to the timeliness or sufficiency of Dr. Brewer=s reports until February 22,
2008, about one year and seven months after the twenty-one day deadline.
According to McCoy, OGA=s conduct was sufficiently implicated to trigger the duty to object to the sufficiency
of the expert reports because Dr. Brewer=s reports addressed the conduct of OGA=s employees, Drs. Jacobs
and Gunn, the reports identified Dr. Gunn as OGA=s employee, and McCoy=s original petition alleged that
OGA was vicariously liable for the conduct of Jacobs and Gunn under the doctrine of respondeat superior and
the requirements of the Texas Professional Association Act. See Troeger v. Myklebust, 274 S.W.3d 104, 110
(Tex. App.CHouston [14th Dist.] 2008, pet. denied) (rejecting claim that conduct of dentist, who was sole
defendant, was not implicated because her name was omitted from expert report and holding that dentist
waived challenges to expert report by failing to raise objections within twenty-one days after service); Univ. of
Tex. Sw. Med. Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.CDallas 2006, no pet.) (holding that medical
center was not required to be named in expert report addressing its residents= conduct because plaintiffs
alleged no direct-liability claims against it and noting that medical center was implicated in report and so
waived all its objections when it failed to object to sufficiency of report within twenty-one days after service).
In response, OGA disputes that its conduct was implicated by Dr. Brewer=s reports; OGA also argues that it
was under no duty to file objections to the reports within twenty-one days after service of the reports because
McCoy failed to serve an expert report addressing OGA=s conduct. See Poland v. Grigore, 249 S.W.3d 607,
616 (Tex. App.CHouston [1st Dist.] 2008, no pet.) (holding that a complaint that a report was not timely served
was not subject to the twenty-one day deadline to object to the sufficiency of a report under former section
74.351(a)). Further, OGA asserts that McCoy=s reliance on Dale is misplaced. In Dale, the court held that
the expert report, which addressed only the negligence of the medical center=s residents, was not required to
mention the medical center by name because the plaintiffs were not alleging that the defendant medical center
was directly negligent. See Dale, 188 S.W.3d at 879. Here, OGA complains, McCoy has alleged direct liability
against it, pointing to McCoy=s allegations of liability based on the Texas Professional Association Act, gross
negligence, and vice-principal theories. Therefore, OGA contends, McCoy was required to provide an expert
report specifically addressing the conduct for which OGA was allegedly directly liable.
Our supreme court has recently considered the question whether a defendant who is alleged to be vicariously
liable for the conduct of another is sufficiently implicated in an expert report when it is not named in the report
and its conduct is not directly addressed. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669 (Tex. 2008) (per
curiam). In that case, the Gardners brought a health care liability suit against Dr. Berney Keszler, who
performed a lumbar-epidural procedure on Craig Gardner, and U.S. Imaging, Inc., d/b/a SADI Pain
Management (ASADI@), the owner and operator of the facility where the procedure was performed. Id. at
670. In the supreme court, SADI argued that it was not served with an expert report because the report that
was served addressed only Dr. Keszler=s conduct and did not mention SADI or implicate its behavior. Id. at
671. The supreme court rejected this argument, holding that A[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.@ Id. at 671B72.
Although Gardner involved a corporation rather than a professional association, we conclude that its
reasoning is equally applicable here. Therefore, we reject OGA=s assertion, at least concerning Apurely
vicarious@ liability claims, that Dr. Brewer=s expert reports concerning Drs. Jacobs and Gunn did not
sufficiently implicate OGA. See id.; Ctr. for Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 295
(Tex. App.CFort Worth 2008, pet. denied) (holding that expert report that sufficiently addressed certain claims
against doctor employed by professional association was sufficient as to claims against professional
association based on doctor=s negligence because the doctor=s negligence is imputed to the association
under the Professional Association Act).[2] Here, OGA did not object to Dr. Brewer=s reports concerning the
conduct of Drs. Jacobs and Gunn within twenty-one days, and so, as to any claims based on vicarious liability,
OGA waived any complaints concerning the sufficiency of the reports. See Ogletree, 262 S.W.3d at 321B22.
Accordingly, the trial court did not err in denying OGA=s motion to dismiss vicarious-liability claims based on
the negligence of Drs. Jacobs and Gunn.
But OGA contends that in addition to the vicarious-liability claims covered by Dr. Brewer=s reports as to Drs.
Jacobs and Gunn, McCoy also leveled direct-liability claims against it, for which McCoy has provided no expert
report. A plaintiff must provide an expert report as to each health care provider against whom he has alleged
a health care liability claim, or the claim must be dismissed on the health care provider=s motion. See Tex.
Civ. Prac. & Rem. Code Ann. ' 74.351(b) (providing that a trial court Ashall@ dismiss a claim when expert
reports are not served within 120 days). If OGA is correct that McCoy has asserted claims of direct
negligence against it, then McCoy was required to serve OGA with an expert report specifically addressing its
conduct rather than just the conduct of Drs. Jacobs and Gunn for which OGA is vicariously liable. Because
McCoy served no such reportCeither at the time he served the other reports or after he filed the third
amended petition in which he made the additional allegations OGA complains ofCOGA could not have waived
any complaints about its sufficiency. See Poland, 249 S.W.3d at 615B16; see also Ogletree, 262 S.W.3d at
320 (noting that Aa deficient report differs from an absent report@). Therefore, we must consider whether, as
OGA contends, McCoy has alleged any direct-liability claims against it.
2. Did McCoy Assert Direct-Liability Claims Against OGA?
OGA maintains that the trial court abused its discretion in failing to grant OGA=s motion to dismiss McCoy=s
claims against it because McCoy alleged that OGA was liable under both vicarious- and direct-liability
theories, but served no expert reports specifically addressing OGA=s allegedly negligent conduct as a
professional association. In response, McCoy repeatedly asserts in his appellate brief that the only basis for
OGA=s liability is vicarious liability, and it is not asserting any direct-liability claims against OGA. McCoy=s
counsel maintained this position at oral argument.
In their briefs, the parties concentrate much of their briefing on whether OGA was sufficiently implicated in Dr.
Brewer=s experts reports concerning Drs. Jacobs and Gunn. However, as noted above, the supreme court
has recently held that when a party=s alleged health care liability is Apurely vicarious,@ a report that
adequately implicates the actions of that party=s agents or employees is sufficient. Gardner, 274 S.W.3d at
671B72. Therefore, we will turn to OGA=s argument that McCoy alleged direct-liability claims against it and,
consequently, section 74.351 required McCoy to provide an expert report addressing OGA=s conduct as a
professional association.
a. Alleged Liability Under the Professional Association Act
First, OGA contends that Texas law interprets a claim against a professional association for the acts of its
physician-principals under the Texas Professional Association Act as a direct-liability claim against the
professional association. See Battaglia v. Alexander, 177 S.W.3d 893, 902 (Tex. 2005); Kettle v. Baylor Med.
Ctr. at Garland, 232 S.W.3d 832, 842 (Tex. App.CDallas 2007, pet. denied); see also Tex. Rev. Civ. Stat. Ann.
art. 1528f, ' 24 (Vernon 2003 & Supp. 2008) (providing that a professional association Ashall be jointly and
severally liable@ with the officer or employee furnishing professional services for, among other things, the
officer=s or employee=s negligence when in the course of employment for the association). Consequently, it
argues, McCoy was required to serve an expert report addressing OGA=s conduct.
In Battaglia, the supreme court considered, among other things, whether two professional associations were
directly liable for the plaintiffs= health care liability claims when one of their physicians obtained a directed
verdict and a jury failed to find the other physician negligent. 177 S.W.3d at 901B902. On the facts before it,
the court stated that A[e]ach professional association had direct liability for the actions of its
physician-principal in the course of his employment, and vicarious liability for the actions of its agents and
employees in the course of their employment.@ Id. at 902. Recognizing that a professional association can
act only through individuals, the court went on to state that A[i]f the physicians were negligent, the
professional associations were likewise negligent, since each association acted only through its
physician-principal.@ Id. The court agreed with the professional associations that they could not have been
negligent if their respective physician-principals were not negligent, but determined that the physician=s lack
of negligence was not established at trial. Id. at 903. Attributing some of the apparently inconsistent results of
the trial to confusion generated by the parties= positions below and the trial court=s charge, the court went on
to instruct that Athe jury should have been asked only whether the physicians were negligent; the
consequences to the professional associations follow as a matter of law.@ Id.
Although OGA seizes on the Battaglia court=s statement that the professional association had Adirect
liability@ for the actions of its physician-principals, the opinion does not advance its argument that a separate
expert report is therefore required. Battaglia illustrates that a professional association acts through its
principals, agents, and employees, and so can be Adirectly@ liable for the actions of its principals in the
sense that the principal=s actions are considered the actions of the association itself, as distinguished from
vicarious liability for the actions of employees or agents. See id. at 902B03. As the court noted, the only
question at trial should have been Awhether the physicians were negligent@; the legal consequences to the
professional association would follow from the answer to that question. See id. at 903. Thus, the Battaglia
court=s discussion of direct liability neither addresses nor supports OGA=s argument that an expert report
specifically criticizing its conduct was required. Indeed, a fair reading of Battaglia militates against requiring a
separate expert report. If the legal consequences to the professional association are based solely on the
doctors= conduct, and no allegation is made that the professional association itself is negligent in some way,
then a separate expert report addressing the professional association=s conduct would appear to be
unnecessary. See id. at 902B03.
OGA=s reliance on Kettle is also unavailing. In that case, the plaintiffs sued a professional association and
others for alleged medical negligence following Raymond Kettle=s death after being implanted with a cardiac
pacemaker. 232 S.W.3d at 836. The Kettles filed one expert report from a cardiologist as to all of the
defendant physicians and the cardiologists= professional association, and a separate expert report from a
nurse as to the conduct of the hospital nurses. Id. at 837B42. On appeal, the court rejected the plaintiffs=
assertion that the expert-report requirement of article 4590i (the predecessor to chapter 74) did not apply to
the professional association because they alleged only vicarious, not direct, liability against the association
based on the conduct of a Dr. Agrawal. Id. at 842. The court rejected this argument on the grounds that the
statute expressly required that an expert report be submitted as to each health care provider. Id. The court
also relied on the Battaglia court=s discussion of an association=s direct liability under the Professional
Association Act. Id. However, the court went on to state that Awhether [the association=s] liability is
considered direct or vicarious, that liability still depends on conduct of Agrawal, to which [article 4590i]
indisputably applies.@ Id. at 842B43. Because the plaintiffs= expert report was deficient as to Agrawal, the
court ultimately held that the trial court did not err in dismissing the claims against the association. Id. at 843.
Thus, although the Kettle court appears to conclude that an expert report is required whenever a professional
association is sued, it also recognizes that the liability of the professional association depends on the conduct
of the association=s physician, and its holding is based on the inadequacy of the expert report as to that
physician. Therefore, Kettle is not persuasive on the question before us.
McCoy=s petitions alleged, under a section entitled AVicarious Liability,@ that OGA was Avicariously liable for
the conduct of its employees, members, and/or agents (Defendants Gunn and Jacobs) under the doctrine of
respondeat superior and under the statutory vicarious liability requirements provided in the Texas
Professional Association Act.@ It is evident that this claim is directed to OGA=s liability based solely on the
conduct of Drs. Gunn and Jacobs; no direct-negligence theories distinct from the doctors= actions are
alleged. When liability is alleged against a professional association based solely on the actions of its
principals, the question of the professional association=s liability is based on a legal principle, not a medical
standard of care, and so no expert report is required.[3] See Hiner v. Gaspard, No. 09-07-240-CV, 2007 WL
2493471, at *5 (Tex. App.CBeaumont Sept. 6, 2007, pet. denied) (mem. op.) (holding that no expert reports
specifically addressing conduct of professional corporation and professional association were required when
plaintiffs alleged only vicarious liability based on medical negligence of entities= physicians, explaining that the
entities= conduct Ais not measured by a medical standard of care@ but rather their liability was solely
vicarious); In re CHCA Conroe, L.P., 09-04-453-CV, 2004 WL 2671863, at *1 (Tex. App.CBeaumont Nov. 23,
2004, orig. proceeding) (mem. op., per curiam) (holding that expert report addressing hospital=s conduct was
not required when plaintiffs= sole theory against hospital was vicarious liability based on ostensible agency
and explaining that A[t]he conduct by the hospital on which the agency relationship depends is not measured
by a medical standard of care. These are principles of agency law on which no expert report is required.@).
Here, McCoy seeks to hold OGA liable under a theory of respondeat superior and statutory liability under the
Texas Professional Association Act based solely on the conduct of Drs. Jacobs and Gunn. We conclude that,
on these facts, a separate expert report addressing OGA=s conduct is not required under section 74.351 to
support McCoy=s allegations.
b. Alleged Liability for Gross Negligence
Next, OGA contends that McCoy=s third amended petition attempts to hold it liable for gross negligence, citing
the following language: Athe evidence clearly and convincingly shows that conduct of . . . [OGA] in this case
constitutes >gross negligence.=@ According to OGA, McCoy is alleging that OGA itself committed some
conduct amounting to gross negligence, and that the allegation is broad enough to leave the door open for
further allegations of direct liability against it. See Azle Manor, Inc. v. Vaden, No. 2-08-115-CV, 2008 WL
4831408, at *4 (Tex. App.CFort Worth Nov. 6, 2008, no pet.) (mem. op.) (holding that allegations that entity
Aamong other things@ Afailed to act as an ordinary prudent person would have under the same or similar
circumstances@ was broad enough to encompass a direct-liability claim and leave the door open for further
allegations of direct liability).
In Azle Manor, the expert report appellees provided did not mention the Azle Manor nursing home, but did
address the alleged negligence of appellants= employees. Id. at *5. The court, assuming the adequacy of
the reports as to the employees, held that the report was sufficient to satisfy the expert-report requirement for
the vicarious-liability claims against appellants. Id. However, the court also held that the report was
inadequate as to appellees= direct-liability claims because it did not mention appellants and it failed to
describe the standards of care applicable to them directly or how they breached those standards. Id.
This case is distinguishable from Azle Manor. First, when McCoy=s allegations are reviewed in context, no
direct-liability claim is articulated against OGA, and nowhere does McCoy allege that OGA breached any
applicable standard of care rendering it liable for gross negligence. In the section entitled AGross
Negligence@ McCoy alleges the following:
The evidence clearly and convincingly shows that conduct of Defendants Debra C. Gunn, M.D., Mark A.
Jacobs, M.D., and Obstetrical and Gynecological Associates, P.A. in this case constitutes Agross
negligence@ as this term is defined in ' 41. 001(11) of [the] Civil Practices and Remedies Code. . . .
. . .
Defendants Debra C. Gunn, M.D. and Mark A. Jacobs, M.D. were negligent and grossly negligent in the care
and treatment of Shannon Miles McCoy. The negligence and gross negligence of these Defendants was a
proximate cause of Plaintiff=s injuries and damages in this case. Defendant Obstetrical and Gynecological
Associates, P.A. is jointly and severally responsible for the grossly negligent conduct of Defendants Debra C.
Gunn, M.D. and Mark A. Jacobs, M.D. According to the Texas Professional Association Act, A[t]he association
is jointly and severally liable with the officer or employee furnishing professional services for such professional
errors, omission, negligence, incompetence or malfeasance on the part of such officer or employee when
such officer or employee is in the course and scope of his employment for the association.@ Tex. Rev. Civ.
Stat. Ann. Art 1528f, ' 24 (Vernon 2001).
(emphasis added). The plain language of the petition demonstrates that any alleged gross negligence on the
part of OGA is, again, based solely on the conduct of Drs. Gunn and Jacobs. Therefore, the Azle Manor
court=s conclusion that an expert report was required to address the appellants= allegedly negligent conduct
because the plaintiffs= allegation was broad enough to encompass a claim of direct negligence against the
appellants does not apply in this case, because McCoy=s allegation that OGA was grossly negligent is limited
to OGA=s alleged liability for the doctors= conduct.
Even if one were to interpret the allegations broadly enough to encompass some allegation of direct liability
against OGA, McCoy has repeatedly asserted throughout his briefing, and represented to this court at oral
argument, that he was alleging only claims of vicarious liability, and was not alleging any claims of direct
negligence against OGA. Therefore, given McCoy=s disclaimer of any theory of direct negligence against
OGA, and the language of the petition, we conclude that McCoy=s allegation that OGA is liable for gross
negligence is based solely on the conduct of Drs. Gunn and Jacobs, and so no expert report is required to
address these allegations. See In re CHCA Conroe, L.P., 2004 WL 2671863, at *1 (AAlthough the plaintiffs=
petition could be read more broadly were it not for an express abandonment of all other theories of liability,
the sole theory of liability applicable to the relators is a vicarious claim for the medical malpractice of the
doctors on the doctrine of ostensible agency.@).
c. Alleged Liability Under Vice-Principal Theory and Ratification
OGA also contends that McCoy has asserted a direct-liability claim against it based on vice-principal theory
and an allegation that OGA authorized or ratified the conduct of Drs. Jacobs and Gunn. McCoy=s allegations
in the third amended petition in the section entitled AVice Principal@ consist of the following:
Defendants Debra C. Gunn, M.D. and Mark A. Jacobs, M.D. are vice-principals of Defendant Obstetrical and
Gynecological Associates, P.A. As vice-principals, Defendants Debra C. Gunn, M.D. and Mark A. Jacobs,
M.D. represent Defendant Obstetrical and Gynecological Associates, P.A. in its corporate capacity. When
actions are taken by a Avice-principal@ of a corporation, those acts are deemed to be the act of the
corporation itself. Defendant Obstetrical and Gynecological Associates, P.A. authorized and/or ratified the
conduct of Defendants Debra C. Gunn, M.D. and Mark A. Jacobs, M.D. in this case, Defendants Debra C.
Gunn, M.D. and Mark A. Jacobs, M.D. were employed by Defendant Obstetrical and Gynecological
Associates, P.A. in a managerial capacity for Defendant Obstetrical and Gynecological Associates, P.A. at the
time of their conduct in this case, and both Defendants Debra C. Gunn, M.D. and Mark A. Jacobs, M.D. were
acting in the course and scope of their employment at the time they cared for Shannon Miles McCoy in
September 2004.
Again, it is evident that McCoy=s allegations are directed to the conduct of Drs. Jacobs and Gunn, and McCoy
seeks to impose liability on OGA for their conduct based on legal constructs or principals that make the
actions of certain individuals the actions of the entity itself.
Here, McCoy alleges that Drs. Jacobs and Gunn are vice-principals for purposes of imputing the doctors=
alleged gross negligence in caring for Shannon to OGA. A corporation may be liable in punitive damages for
gross negligence only if the corporation itself commits gross negligence. Mobil Oil Corp. v. Ellender, 968
S.W.2d 917, 921 (Tex. 1998). Because a corporation can act only through agents of some character, the
supreme court has developed tests for distinguishing between acts that are solely attributable to agents or
employees and acts that are directly attributable to the corporation. Id. The supreme court has determined
that a corporation is liable for punitive damages if it authorizes or ratifies an agent=s gross negligence or if it
commits gross negligence through the actions or inactions of a vice-principal. Id. at 921B22. A vice-principal
encompasses (1) corporate officers, (2) those who have authority to employ, direct, and discharge servants of
the master, (3) those engaged in the performance of nondelegable or absolute duties of the master; and (4)
those to whom the master has confided the management of the whole or a department or a division of the
business. Id. at 922 (citing Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex. 1997)).
McCoy=s allegations that OGA Aauthorized and/or ratified@ the actions of Drs. Jacobs and Gunn and that the
doctors are OGA=s vice-principals do not include any allegation that OGA itself engaged in any act of medical
negligence for which an expert report would be required. Instead, McCoy appears to be asserting that OGA
Aauthorized and/or ratified@ Drs. Jacobs and Gunn=s conduct merely because Drs. Jacobs and Gunn
themselves are simultaneously vice-principals (the ratifiers and authorizers of corporate conduct) and
employees of OGA (whose conduct the vice-principals Aratified and/or authorized@).[4] McCoy=s ratification
and authorization allegations, therefore, again amount to nothing more than claims of vicarious liability.[5]
Because McCoy=s reports as to Drs. Jacobs and Gunn sufficiently address such vicarious-liability allegations,
we again reject OGA=s assertion that the trial court erred in denying its motion to dismiss McCoy=s claims.
OGA repeatedly asserts that McCoy=s allegations seek to impose Adirect liability@ on OGA and that
consequently McCoy was required to provide an expert report specifically addressing OGA=s conduct. But
OGA fails to recognize the distinction between seeking to impose liability based on the entity=s own
negligence and seeking to impose Adirect@ liability on an entity by imputing the actions of one or more
individual to the entity. Because entities like professional associations and corporations can act only through
individuals, the legal constructs discussed above have been created to distinguish a principal=s liability for its
own acts as opposed to a principal=s liability for the conduct of its employees or agents under the doctrine of
vicarious liability or respondeat superior. See F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680,
686 (Tex. 2007) (explaining that generally, in Texas, the doctrine of vicarious liability, or respondeat superior,
makes a principal liable for the conduct of his employee or agent). But, the mere allegation of direct liability
against an entity, absent any claim that the entity itself was negligent, is not necessarily enough to impose the
requirement of an expert report on a plaintiff under chapter 74. See Tex. Civ. Prac. & Rem. Code Ann.
'74.001(a)(13) (Vernon 2005) (defining a health care liability claim as Aa 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.@).
A review of several cases involving complaints of direct liability based on an entity=s own negligent conduct
illustrates the distinction. For example, in University of Texas Medical Branch v. Railsback, a plaintiff brought
health care liability claims against UTMB, alleging that (1) UTMB failed to monitor its physicians and
employees and to provide competent medical staff to ensure the plaintiff=s safety, and (2) acting though
various individuals, UTMB engaged in acts and omissions constituting negligence, negligent supervision, and
failure to properly train its employees and staff physicians. 259 S.W.3d 860, 862 (Tex. App.CHouston [1st
Dist.] 2008, no pet.). The plaintiff=s expert report contained no mention of UTMB=s standard of care, breach
of that standard, or any causal relationship between that breach and the plaintiff=s injury. Id. at 866.
Accordingly, the court held that the trial court abused its discretion in not granting UTMB=s motion to dismiss
the plaintiff=s direct-liability claims against it. Id. In Renaissance Surgical Centers-South Texas, L.L.P. v.
Jimenez, the plaintiffs alleged direct liability theories against a surgical center and several related entities for
improperly discharging the patient and for negligent supervision. No. 13-07-00121-CV, 2008 WL 3971096, at
*1 (Tex. App.CCorpus Christi Aug. 28, 2008, no pet.) (mem. op.). In an effort to satisfy the expert-report
requirement as to these claims, the plaintiffs provided two expert reports. The court found that one of the
expert reports sufficiently addressed causation, but because it found the other expert unqualified, it remanded
in part to allow the trial court to consider whether to grant a thirty-day extension to cure the deficient report.
Id. at *10.
In Center for Neurological Disorders, P.A. v. George, the plaintiff alleged two direct-liability claims against
CND, a professional association: (1) that CND failed to timely, properly, safely, or adequately govern or
supervise the quality of medical, surgical and health care services to and for the patient; and (2) CND directly
and through its employees or agents engaged in acts or omissions departing from the applicable standard of
care. 261 S.W.3d at 294. The expert=s report was held to be insufficient as to the failure to supervise claim
because the plaintiffs= expert report discussed CND=s negligence only in the context of its provision of
medical services through its doctor. Id. The court noted that, although the report clearly supported a claim
for CND=s vicarious liability for the doctor=s negligence, it failed to support a separate standard of care
applicable to a professional association of neurosurgeons. Id. As to the other claim against CND, the court
did not address it because it found that CND did not raise any complaint below about that claim. Id. at 295.
In each of these cases, plaintiffs alleged direct-liability claims asserting medical negligence or the breach of a
standard of care against the defendant entity as an entity. The courts then determined whether the statutory
expert-report requirements of standard of care, breach, and causation were satisfied as to the direct-liability
claims alleged. In contrast, McCoy has alleged no such claims against OGA; all of its claims are based on
OGA=s vicarious or direct liability for the actions of Drs. Jacobs and Gunn based on legal principles for which
no expert report is required. Therefore, on the facts of this case, we conclude that the trial court did not
abuse its discretion by not granting OGA=s motion to dismiss. We therefore overrule OGA=s issue.
Conclusion
We affirm the trial court=s order denying OGA=s motion to dismiss.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Brown, Boyce, and Sullivan.
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[1] The current version of section 74.351(a) requires that a claimant serve an expert report in a health care
liability claim not later than the 120th day after the date that Athe original petition is filed.@ See Tex. Civ.
Prac. & Rem. Code Ann. ' 74.351(a). However, the current version does not apply to this case, because
McCoy=s cause of action accrued before the effective date of the amendment. See Act of May 18, 2005, 79th
Leg., ch. 635, ' 2, 2005 Tex. Gen. Laws 1590, 1590 (providing that 2005 amendment of section 74.351(a)
applies only to causes of action that accrued on or after the amendment=s effective date of September 1,
2005). We will refer to the applicable version as Aformer section 74.351(a).@
[2] In its appellate brief, OGA argues that professional associations are distinct from other types of entities
such as hospitals, which may be liable for the conduct of their employees, see, e.g., Dale, 188 S.W.3d at 879,
and contends that the distinction between liability for physician-employees and physician-principals is Aan
important one.@ OGA argues that, although a professional association may be liable generally for an act of
its employee-physician because it has the right to control the physician-employee, it is possible for a
physician-principal to act outside the scope of its employment as a principal of the professional association.
See Battaglia v. Alexander, 177 S.W.3d 893, 901 (Tex. 2005) (AWhile a professional association with a single
principal can act only through that person, the person can act outside the scope of his employment as
principal of the association.@). Thus, OGA continues, the conduct of the physician-principal does not
necessarily implicate the conduct of the professional association. However, OGA fails to explain how this
distinction applies to this case other than to distinguish this case from Dale. Further, OGA did not argue
below that the doctors were not acting in the course and scope of their employment. Therefore, we express
no opinion on this argument.
[3] We note, however, that in certain cases involving complex interrelationships between corporations,
professional associations, or other types of entities, a report prepared by an expert in corporate law may be
helpful to the medical experts and the court, and may be considered as a Agood cause@ exception to the
general rules concerning expert reports under Chapter 74. See Packard v. Guerra, 252 S.W.3d 511,
528B533 (Tex. App.CHouston 2008, pet. denied) (holding that trial court did not abuse its discretion in
considering expert report prepared by non-physician corporate lawyer to Aconnect the dots@ among the
business relationships of defendant entities and doctors acting in their corporate capacities). But this is not
such a case. Further, we note that in Packard, the plaintiffs alleged that, among other things, the
corporations, partnerships, and director/officer physicians were vicariously and directly liable for injuries
suffered by the plaintiffs= daughter during delivery because they breached their duties to staff, supervise, and
provide medical care to patients in the emergency department of the hospital. Id. at 514. McCoy makes no
such allegations here.
[4] If McCoy had truly pleaded an independent act by the professional association that constituted ratification,
another expert report would have been required. See Ctr. for Neurological Disorders, P.A. v. George, 261
S.W.3d at 294 (stating that plaintiffs who alleged professional association was directly liable for failing to
supervise the provision of health care services were Arequired to provide an expert report on this claim or
face having the claim dismissed with prejudice@ and holding that plaintiffs= expert report, which addressed
only the conduct of the doctor employed by the professional association, failed to establish a separate
standard of care applicable to the professional association).
[5] This comports with McCoy=s counsel=s admission in oral argument before this court that McCoy was not
asserting any claims of Adirect liability@ against OGA.