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Certified EMS Inc. v. Potts

Appellant, Certified EMS Inc., challenges the trial court's order denying its motion to dismiss the health care liability claim of appellee, Cherie Potts. Potts's expert report adequately addresses facts describing alleged improper sexual conduct by a nurse, and the report, therefore, is adequate as to his employer, Certified EMS, under the vicarious-liability legal theory of respondeat superior. Because the suit by Potts may proceed against Certified EMS under at least one liability theory for the cause of action concerning the nurse's alleged improper sexual contact with Potts, Potts may proceed with any and all liability theories for this cause of action, regardless of whether those other liability theories were shown in an adequate expert report. The trial court's order denying Certified EMS's second motion to dismiss is affirmed. Houston's 1st Court of Appeals, No. 01-10-00106-CV, 05-19-2011.

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OPINION ON REHEARING

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 claim of appellee, Cherie Potts. Certified EMS has filed a motion for en banc reconsideration, and Potts has filed a response to that motion. We construe Certified EMS’s motion as both a motion for rehearing and a motion for en banc reconsideration. See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 39 (Tex. App.–Houston [1st Dist.] 2004, pet. denied). We withdraw our January 27, 2011 opinion and judgment and replace them with this opinion and judgment; the motion for en banc reconsideration is, therefore, moot. See Richardson-Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 472 (Tex. App.–Houston [1st Dist.] 2006, pet. denied).

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