Harmel & Car, Inc. d/b/a Right at Home v. Maria Collins

This is a health care liability case. Appellee Maria Collins sued appellant Harmel & Car,

Inc. d/b/a Right at Home and others for personal injuries that she allegedly suffered in a fall at an

inpatient rehabilitation facility. She timely furnished two reports in an attempt to comply with

civil practice and remedies code § 74.351. Harmel later filed a motion to dismiss, contending

that Collins’s reports did not satisfy the statutory requirements. Collins responded that Harmel

waived its objections by not asserting them within the statutorily required 21 days after she

served the reports. The trial court denied the motion, and Harmel timely perfected this

interlocutory appeal. We affirm.

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I. BACKGROUND

A. Factual Allegations

Collins alleged the following facts in her live pleading. In March 2012, she underwent

surgery and then was transferred to a facility called Pearl Nordan Care Center for inpatient

rehabilitation. She suffered from many health problems, including dementia. Because of her

condition, Collins was assessed as a high fall risk, and it was determined that she needed

monitoring around the clock.

Pearl Nordan did not have a Spanish speaker on staff to monitor Collins, so Harmel “was

brought in to provide a ‘caregiver’ so that Ms. Collins could be monitored full time.” A nurse

named Jermaima Juuko, an agent or employee of Harmel, was responsible for Collins’s care on

March 14, 2012. On that same date, Collins was left unattended in her room, and she fell. The

fall caused injuries that necessitated another surgery. Collins now suffers from continued pain

and limited use of her right hip.

B. Procedural History

In March 2014, Collins sued Harmel, Juuko, and Pearl Nordan for negligence and gross

negligence, alleging among other things that Juuko was Harmel’s agent or employee. In addition

to her claims against Juuko and Pearl Nordan, she asserted direct liability claims against Harmel

for its own negligence, such as failing to adequately supervise its employees, and vicarious

liability claims against Harmel for the negligence of its agents and employees.

Collins timely served a report by Sheri Innerarity, Ph.D., a registered nurse, and a later

report by Peter Gailiunas, Jr., M.D. Both reports focused primarily on Juuko’s and Pearl

Nordan’s conduct as breaching the relevant standards of care and causing Collins’s injuries.

They also mentioned Harmel as shown below.

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Innerarity’s report said the following about Harmel using its business name “Right at

Home”:

As a result [of Collins’s fall risk and inability to speak any language but Spanish],

Mrs. Juuko was hired through Right at Home as a full time attendant and

translator.

. . .

[Juuko was negligent as follows:]

4. Failing to provide constant monitoring, which was the purpose of hiring

Right at Home (Mrs. Juuko) to provide a safe environment.

Gailiunas’s report has the following similar statements:

Because Ms. Collins met the criteria for a fall risk, a private nurse was employed,

Jermaima Juuko of Right At Home. . . .

. . .

[The nurses including Juuko were negligent as follows:]

4. Failing to provide constant monitoring, which was the purpose of hiring

Right at Home (Mrs. Juuko) to provide a safe environment.

Harmel did not object to either report within 21 days after they were served. After the

120 day expert report deadline passed, however, Harmel moved to dismiss all claims against it

with prejudice. Harmel argued that it was entitled to dismissal because (1) neither report

addressed the standard of care for home and community support services agencies like Harmel,

and (2) Innerarity’s report did not mention Harmel beyond “an incorrect statement that Juuko is

an employee of” Harmel and Gailiunas’s report did not mention Harmel at all.1

Harmel supported its motion with its president Harley Cohen’s affidavit, which said that

Harmel was a home and community support services agency under chapter 142 of the health and

safety code. Cohen also said that Pearl Nordan hired Harmel to provide “sitting services” for

1 Harmel’s assertion about the Gailiunas report was incorrect, as shown by the quotations above.

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Collins, that Harmel provided those services from March 9 until March 14, 2012, and that

“Jermaima Juuko is not currently and has never been an employee of [Harmel].”

Collins responded that her reports were sufficient and that Harmel had waived its motion

by failing to object to the reports within 21 days after they were served.

The trial court denied Harmel’s motion to dismiss, and Harmel’s interlocutory appeal

ensued. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (West 2015).

II. ANALYSIS

A. The Parties’ Contentions

In a single issue, Harmel argues that the trial court abused its discretion in denying

Harmel’s motion to dismiss because:

The Reports fail to implicate [Harmel] or address the standard of care applicable

to a Home and Community Support Services Agency. The Innerarity Report

addresses the conduct and standard of care for Juuko and Pearl Nordan, but not

[Harmel]. The only mention of [Harmel] is the factually inaccurate statement that

Juuko was an employee of [Harmel]. Further, even if Juuko was an employee of

[Harmel], the Reports fail to address the applicable standard of care for a Home

and Community Support Services Agency. Similar to the Innerarity Report, the

Gailiunas Report mentions [Harmel] only once, an incorrect statement that Juuko

worked for [Harmel]. Besides this inaccurate statement, the Gailiunas Report

makes no mention of [Harmel], does not implicate [Harmel’s] conduct, and does

not address the standard of care applicable to [Harmel] as a Home and

Community Support Services Agency. (record citations omitted)

Based on those concepts, Harmel argues that the Reports do not implicate Harmel, and

Harmel was thus not required to object to the reports’ sufficiency within the 21 day statutory

deadline for serving such objections. Accordingly, Harmel argues, the trial court abused its

discretion by not dismissing Collins’s claims for failure to assert a timely expert report

describing the appropriate standard of care applicable to a home and community support services

agency like Harmel.

Collins responds that the reports were adequate because they (1) expressly name Harmel,

(2) were based on Collins’s and the experts’ good faith belief that Juuko was Harmel’s

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employee, and (3) are sufficient in their four corners to implicate Harmel based on a vicarious

liability claim. Collins further argues that Harmel waived any complaint about the reports’

sufficiency by not timely serving an objection identifying the alleged deficiency, and the trial

court properly denied Harmel’s motion to dismiss.

We agree with Collins for the reasons discussed below.

B. Standard of Review

We review a trial court’s order on a motion to dismiss a health care liability claim for an

abuse of discretion. Nexion Health at Duncanville, Inc. v. Ross, 374 S.W.3d 619, 622 (Tex.

App.—Dallas 2012, pet. denied). A trial court abuses its discretion if it rules arbitrarily and

without reference to guiding rules and principles. Id. The trial court has no discretion in

determining what the law is or in applying the law to the facts. Id.

C. Applicable Law

A plaintiff who files a health care liability claim must serve an expert report on each

defendant within 120 days after the date each defendant’s original answer is filed. TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2014). To be an “expert report,” a report

must provide a fair summary of the expert’s opinions regarding applicable standards of care, the

manner in which the defendant failed to meet the standards, and the causal relationship between

the failure and the injury claimed. Id. § 74.351(r)(6).

“Each defendant physician or health care provider whose conduct is implicated in a

report must file and serve any objection to the sufficiency of the report not later than the later of

the 21st day after the date the report is served or the 21st day after the date the defendant’s

answer is filed, failing which all objections are waived.” Id. § 74.351(a). If a defendant is

obliged to object and fails to timely do so, its motion to dismiss based on the insufficiency of the

report must be denied. See Ogletree v. Matthews, 262 S.W.3d 316, 322 (Tex. 2007).

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If the plaintiff fails to timely serve an expert report as to a defendant, the trial court shall,

on motion of the affected defendant, dismiss the claim with prejudice and award reasonable

attorneys’ fees and costs of court incurred by the defendant. CIV. PRAC. § 74.351(b)(1)–(2).

“When a party’s alleged health care liability is purely vicarious, a report that adequately

implicates the actions of that party’s agents or employees is sufficient.” Gardner v. U.S.

Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam); see Univ. of Tex. Sw. Med.

Ctr. v. Dale, 188 S.W.3d 877, 879 (Tex. App.—Dallas 2006, no pet.) (reports against medical

residents implicated their alleged employer, even though employer was not mentioned in reports)

If any liability theory against a particular defendant has been adequately covered by an

expert report, the entire case may proceed against that defendant. Certified EMS, Inc. v. Potts,

392 S.W.3d 625, 632 (Tex. 2013).

D. Do the reports implicate Harmel’s conduct?

Implicitly acknowledging that it waived its objections if the reports implicated it under

any theory, Harmel argues that Collins’s reports do not implicate Harmel because the Cohen

affidavit stated that Juuko was never Harmel’s employee. Ignoring the fact that such a statement

would not address whether Juuko was nonetheless Harmel’s agent, when reviewing a report’s

sufficiency, courts are limited to the four corners of the report. See, e.g., Bowie Mem’l Hosp. v.

Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam); Brewer v. Standefer, 366 S.W.3d 326, 332

(Tex. App.—Dallas 2012, no pet.). Thus, we disregard the Cohen affidavit.

Based on the claims as pled and the material contained within the four corners of

Collins’s reports, the trial court did not abuse its discretion by concluding that the reports

adequately implicated Harmel through the conduct of its alleged employee and agent Juuko. See

Dale, 188 S.W.3d at 879 (because hospital did not challenge report’s sufficiency as to hospital’s

employees, it failed to show reversible error).

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And, because Harmel’s motion to dismiss was properly denied as to one of Collins’s

liability theories, the trial court correctly denied the motion outright and permitted the entire case

to go forward. See Potts, 392 S.W.3d at 632.

E. Did Harmel waive its objection that Collins’s reports did not set forth the applicable

standard of care?

Harmel’s argument that the reports could not implicate Harmel’s conduct without

addressing the standard of care applicable to a home and community support services agency

lacks merit because that complaint would be an objection that the report does not sufficiently

describe the proper standard of care. See CIV. PRAC. § 74.351(r)(6) (expert report must contain

fair summary of expert’s opinions about “applicable standards of care”). As such, Harmel

waived that objection by failing to assert it timely within the required 21 day statutory objection

period. See Ogletree, 262 S.W.3d at 322 (hospital waived complaints that report was insufficient

as to all elements and that expert was unqualified because it did not object within 21 day period).

Because Harmel waived its complaint that the reports failed to address the standard of

care applicable to home and community support services agencies, the trial court did not abuse

its discretion by rejecting Harmel’s motion to dismiss on that basis.

For the foregoing reasons, we affirm the trial court’s order denying Harmel’s chapter 74 motion to dismiss.