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Certified EMS Inc. v. Potts

The original expert reports were sufficient to implicate the conduct of Certified EMS in this case. Because the trial court granted an extension of time to cure deficiencies in the reports originally filed by Potts, the appellate court lacks jurisdiction over Certified EMS' appeal of the denial of its first motion to dismiss and dismisses its first four issues. The court also affirms the trial court's order denying Certified EMS' second motion to dismiss. Houston's 1st Court of Appeals, No. 01-10-00106-CV, 1-27-2011

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OPINION

In this interlocutory appeal, appellant, Certified EMS, Inc. d/b/a/ CPnS Staffing (“Certified EMS”), challenges the trial court’s order denying its motion to dismiss the health care liability claims of appellee, Cherie Potts. Potts sued Certified EMS alleging that it was directly and vicariously liable for an assault by one of its employees. On appeal, Certified EMS contends that the trial court erred by (1) granting Potts an extension of time to cure deficiencies in her expert reports because the original reports served by Potts do not qualify as expert reports and, therefore, the first motion to dismiss should have been granted, and (2) denying Certified EMS’s second motion to dismiss based on deficiencies in the ultimate reports filed by Potts. We conclude that we lack jurisdiction over Certified EMS’s appeal of the first motion to dismiss, which concerns Potts’s reports that were filed before the court granted an extension of time to file corrected reports. Although the expert reports ultimately filed by Potts were inadequate as to the theories for direct liability she filed, we conclude the trial court properly denied Certified EMS’s motion to dismiss because Potts’s expert report was adequate for vicarious liability. We affirm the order of the trial court.

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