The El Paso Court of Appeals has affirmed a trial court order denying § 74.351, CPRC, motions to dismiss health care liability claims against a nursing home and two other entities alleged to have vicarious liability.
El Paso V Enterprises, L.L.C., d/b/a Pebble Creek Nursing Center; Creative Solutions in Health Care, 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 (No. 08-25-00243-CV; February 26, 2026) arose from a health care liability stemming from the death of a nursing home resident. Plaintiff alleged corporate negligence, medical negligence, and gross negligence. Plaintiff served two expert reports, one from a registered nurse addressing the standard of care and breach, and the other from a physician addressing the negligence claims. Defendants objected to the reports and filed motions to dismiss. The trial court denied the motions. Defendants sought interlocutory relief.
In an opinion by Justice Soto, the court of appeals affirmed. First, as to the nurse’s report, Defendants argued that she was unqualified because neither her CV nor report showed that she had any experience, knowledge, training, or education in the treatment and prevention of pressure wound in nursing homes. The court observed, however, that her CV stated that she had experience working in long-term care and as a consultant on standards and practices for a large facility involving long-term care and rehabilitation units. The court further determined that the nurse articulated both the standard of care and the breach when she opined that Defendants should have put the decedent on a prevention routine to prevent pressure injury, including “skin assessment (use of risk scale protocol in place for residents at high risk), turning and offloading schedule, nutrition consult, physician notification, and air mattress implementation.” The expert further pointed out that it didn’t appear that Defendants implemented any treatment, not even daily assessments of her condition. Citing SCOTX’s view that the “threshold report is measured under ‘lentient standard’ and need not ‘marshall all the plaintiff’s proof,’” the court found the report sufficient to put Defendants on notice of the nature of the claim.
Turning to the physician’s report, the court noted that the physician had 27 years of experience as a family practitioner in “various setting,” including skilled nursing facilities, had seen patients in the decedent’s condition before, and was familiar with accepted standards of care for pressure injuries. Even though the physician relied largely on the nurse’s opinions, the court observed that “an expert may rely on another expert’s opinion as to one or more elements of a claim.” He, too, opined that Defendants’ failure to conduct daily evaluations and to adequately treat the wounds breached the standard of care.
Two corporate defendants argued that since they didn’t own or operate the nursing home, Plaintiff’s experts had to identify a “separate and distinct standard of care from the licensed operator.” But, as the court pointed out, Plaintiff’s asserted vicarious liability. Consequently, “a[] [threshold] expert report that meets the statutory standards as to the employee is sufficient to implicate the employer’s conduct under the vicarious theory . . . .” This theory relies on the agency relationship and not by standards of medical care, so acts “performed by the agents, representatives, servants, and/or employees of the Defendants” in furtherance of their duties count for vicarious liability purposes. Since the reports weren’t deficient as to the conduct of the nursing home, they weren’t deficient as to the corporate defendants, either.
