ACCEPTED

13-15-00024-CV THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

7/6/2015 3:52:31 PM CECILE FOY GSANGER

CLERK

IN THE THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI/EDINBURG, TEXAS

FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS NO. 13-15-00024-CV 7/6/2015 3:52:31 PM

CECILE FOY GSANGER

Clerk

MARIA ZAMARRIPA, AS GUARDIAN OF THE ESTATES OF R.F.R. AND R.J.R., MINORS, AND OLGA FLORES, AS ADMINISTRATOR OF THE ESTATE OF YOLANDA IRIS FLORES, Appellants

v. BAY AREA HEALTH CARE GROUP, LTD. D/B/A CORPUS CHRISTI MEDICAL CENTER, HIDALGO COUNTY EMS, AND HIDALGO COUNTY EMERGENCY MEDICAL SERVICE FOUNDATION, Appellees.

APPELLANTS MARIA ZAMARRIPA AS GUARDIAN OF R.F.R. AND R.J.R., MINORS, AND OLGA FLORES, AS ADMINISTRATOR OF THE ESTATE OF YOLANDA FLORES REPLY TO BRIEF OF APPELLEE BAY AREA HEALTH CARE GROUP, LTD. D/B/A CORPUS CHRISTI MEDICAL CENTER

WEST, WEBB, ALLBRITTON & GENTRY, P.C.

Gaines West State Bar No. 21197500 Email: [email protected] Jennifer D. Jasper State Bar No.: 24027026 E-mail: [email protected] Donald Delgado State Bar No. 24065139 E-mail: [email protected] 1515 Emerald Plaza College Station, Texas 77845 979.694.7000 ~ Telephone 979.694.8000 ~ Facsimile

COUNSEL FOR APPELLANTS i

TABLE OF CONTENTS

  Table of Contents .................................................................................................... ii

Table of Authorities ................................................................................................. iii   Reply Point One: Nurse Spears is qualified to opine on the applicable standard of care and CCMC’s breach......................................................... 1

A. CCMC has conceded that 74.402(b)(1) does not apply ................................ 1

B. CCMC waived any challenge under section 74.402(b)(2) and (b)(3) ........... 1

Reply Point Two: Appellants’ expert reports sufficiently connect CCMC’s breach of the standard of care and Yolanda’s injuries and death ............... 6

A. Nurse Spears adequately stated the standard of care and breach .................. 6

B. Nurse Spears’s reports do not impose a duty on CCMC that violates

Texas Law ..................................................................................................... 9

Reply Point Three: Dr. Harlass’s report constitutes a good faith effort to comply with section 74.351 ......................................................................... 9

A. Dr. Harlass’s report offers a causation opinion against CCMC that is not conclusory ......................................................................................... 10

B. Dr. Harlass is qualified to render causation opinion against CCMC .......... 12

Reply Point Four: Alternatively, Appellants are entitled to amend reports ......... 14

Prayer.......................................................................................................................15

Certificate of Compliance........................................................................................16

Certificate of Service...............................................................................................17

        ii  

TABLE OF AUTHORITIES

CASES

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,.............................................14

46 S.W.3d 873 (Tex. 2001)

Bowie Mem’l Hosp. v. Wright, ...................................................................................8

79 S.W.3d 48 (Tex. 2002)

Sus Spohn Health Sys. Corp. v. Castro, ...................................................................15

No. 13-13-00302-CV, 2013 WL 6576041 (Tex. App.—Corpus Christi Dec. ^[12], 2013, no pet.)

Cornejo v. Hilgers, ........................................................................................... 10, 12 446 S.W.3d 113 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)

Costello v. Christus Santa Rosa Health Care Corp., .............................................11

141 S.W.3d 245 (Tex. App.—San Antonio 2004, no pet.)

Fortner v. Hosp. of the Sw., LLP, ............................................................................12

399 S.W.3d 373 (Tex. App.—Dallas 2013, no pet.)

Gen. Chem. Corp. v. De La Lastra, ..........................................................................2

852 S.W.2d 916 (Tex. 1993)

Group v. Vicento, .......................................................................................................3

164 S.W.3d 724 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)

Hillery v. Kyle, .........................................................................................................13

371 S.W.3d 482 (Tex. App.—Houston [1st Dist.] 2012, no pet.)

Jelinek v. Casas, .......................................................................................................11

328 S.W.3d 526 (Tex. 2010)

Kelly v. Rendon, .........................................................................................................6

255 S.W.3d 665 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

Mack Trucks, Inc. v. Tamez, ............................................................................. 1, 2, 6 206 S.W.3d 572 (Tex. 2006) iii  

Rittger v. Danos, ............................................................................................... 13, 14 332 S.W.3d 550 (Tex. App.—Houston [1st Dist.] 2009, no pet.)

Salais v. Tex. Dept. Aging & Disability Serv’s., ....................................................8, 9 323 S.W.3d 527 (Tex. App.—Waco 2010, pet. denied)

Scoresby v. Santillan, .................................................................................. 10, 11, 15 346 S.W.3d 546 (Tex. 2011)

Tawa v. Gentry, ........................................................................................................13

No. 01–12–00407–CV, 2013 WL 1694869 (Tex. App.—Houston [1st Dist.] Apr. ^[18], 2013, no pet.)

Tovar v. Methodist Healthcare Sys. of San Antonio, Ltd., LLP.................................8

185 S.W.3d 65 (Tex. App.—San Antonio 2005, pet. denied)

STATUTES

TEX. ADMIN. CODE ANN. § 217.11(c) ................. ................................................9, 10   TEX. CIV. PRAC. & REM. CODE ANN. § 74.351.................................................9, 10

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6)...............................................10

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402……................................................6  

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1).............................................1, 2

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(2).............................1, 2, 3, 4, 5, 6

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(3)................................ 2, 3, 4, 5, 6 iv  

TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

Appellants, Maria Zamarripa, as Guardian of the Estates of R.F.R. and R.J.R., minors, and Olga Flores, as Administrator of the Estate of Yolanda Iris

Flores (“Appellants”), file this Reply to Appellee Bay Area Health Care Group, Ltd. d/b/a Corpus Christi Medical Center’s (“CCMC”) Brief, and would respond as follows:

REPLY POINT ONE: Nurse Spears is qualified to opine on the applicable standard of care and CCMC’s breach.

A. CCMC has conceded that section 74.402(b)(1) does not apply

Section 74.402(b)(1) does not apply to Nurse Spears, because that section only applies “if the defendant is an individual.” TEX. CIV. PRAC. & REM. CODE

ANN. § 74.402(b)(2) (West). On appeal, CCMC does not dispute that

74.402(b)(1) only applies to individual defendants, and not a hospital. CCMC

Appellee’s Brief at 18-19. Accordingly, 74.402(b)(1) does not apply in this case, as CCMC is not an individual. To the extent the trial court granted CCMC’s motion to dismiss based on Nurse Spears’s failure to meet the requirements of section 74.402(b)(1), the court abused its discretion.

B. CCMC waived any challenge under section 74.402(b)(2) and (b)(3)

Texas generally requires parties to properly raise an issue to the trial court in order to have that issue reviewed on appeal. Mack Trucks, Inc. v. Tamez, 206   S.W.3d 572, 577 (Tex. 2006). Additionally, when a party does not raise an issue of controlling law to the trial court, the ability to raise the issue on appeal is waived. Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993).

For the first time on appeal, CCMC contends Nurse Spears is unqualified under subsections 74.402(b)(2) and (b)(3). CCMC Appellee’s Brief at 7. In the trial court, CCMC’s motion to dismiss claimed only that Nurse Spears was unqualified under 74.402(b)(1). CR 237, n.22. Because CCMC did not properly raise the issues of 74.402(b)(2) and (b)(3) in their motion to dismiss, appellate review is limited to the issue of Nurse Spears’s qualifications solely under

74.402(b)(1), which were addressed above. See id.1

For the sake of argument, even if this Court were to find that CCMC adequately objected in the trial court to Nurse Spears’s qualifications under sections 74.402(b)(2) and 74.402(b)(3), CCMC’s arguments that Nurse Spears is not qualified under these subsections fails.

Specifically, CCMC contends Nurse Spears is unqualified under section

74.402(b)(2) to testify as an expert on the standard of care for a hospital’s labor and delivery department presented with the circumstances at issue in this case.

                                                             1 In their Appellee’s Brief, CCMC claims that in fact they did raise subsection (b)(2) and (b)(3) in the trial court, but all they cite in support of this statement is their generic reference to 74.402 in the motion to dismiss. CCMC Appellee’s Brief at 19, n.9. Considering the motion to dismiss’s footnote 22 (which states in full subsection (b)(1)) and complete failure to make any substantive arguments regarding (b)(2) and (b)(3), a mere reference to 74.402 itself does not preserve these arguments for appellate review. See Tamez, 206 S.W.3d at 577. 

CCMC Appellee’s Brief at 16-18. CCMC also asserts Nurse Spears does not satisfy Section 74.402(b)(3) because she was not actively practicing health care in a relevant field at the time of the incident or at the time she authored her reports.

CCMC Appellee Brief at 16-18. Both of these arguments are misplaced.

Section 74.402(b)(2) requires that Nurse Spears “has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.” TEX. CIV. PRAC. & REM.

Code Ann. § 74.402(b)(2); see Group v. Vicento, 164 S.W.3d 724, 734 (Tex.

App.—Houston [14th Dist.] 2005, pet. denied) (holding doctor’s own statement in his report that he has knowledge of accepted standard of care for the injury or illness at issue satisfies section 74.402(b)(2)). The illness, injury or condition involved in this claim is placenta accreta and pre-term labor. Nurse Spears’s curriculum vitae and reports plainly establish that she has knowledge of accepted standards of care for the care and treatment of placenta accreta and pre term labor.

CR 215.

Furthermore, this case specifically involves the issue of transferring a patient with placenta accrete and in pre-term labor, to another facility for treatment.

Along these lines, Nurse Spears’s qualifications include:

In my nursing experience in the L&D Department and in the ER, I have provided instructions to EMS/transfer personnel’s inquiries about whether or not to divert from the receiving hospital in a patient transfer, based on the reported signs and symptoms given by the EMS  

personnel/EMTS. I am familiar with the standard of care for L&D and ER staff for processing such inquiries and the response to be given. I have also practiced as an EMT, and am familiar with the information that EMT provide to receiving hospitals in transfer when calls are made about seeking instructions about possible diversion to a different medical facility.

CR 218.

In light of this experience, CCMC cannot complain about any failure to satisfy 74.402(b)(2). This is evident in the specific (and only) argument CCMC makes on this point: “the vagueness in Nurse Spears’ reports regarding the standard of care applicable to CCMC … indicates she does not have knowledge of the standard of care applicable to CCMC for the circumstances presented in this case.” CCMC Appellee’s Brief at 16.

Thus, rather than claiming she lacks any substantive qualifications to render opinions in this case, CCMC raises a complaint about her reports, apparently trying to boot-strap its complaint about her reports into a complaint about her qualifications. But such a complaint about her reports cannot render Nurse Spears unqualified.

The “knowledge” requirement of subsection (b)(2) is not determined based on the expert’s own recitation of the standard of care in her report and CCMC fails to cite to any authority for this errant proposition. Rather, an expert report satisfies the requirements of section 74.402(b)(2) if the expert is able to show that she has

“knowledge of accepted standards of care for health care providers for the   diagnosis, care, or treatment of the illness, injury, or condition involved in the claim[.]” TEX. CIV. PRAC. & REM. Code Ann. § 74.402(b)(2). As demonstrated above, Nurse Spears’s experience has given her knowledge of the accepted standards of care for treating placenta accrete and pre-term labor. Thus, any argument that she is unqualified under 74.402(b)(2) is undermined by the evidence in this case.

With regard to section 74.402(b)(3), that section requires an expert to be

“qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.” TEX. CIV. PRAC. & REM. CODE

Ann. § 74.402(b)(3). As demonstrated above, Nurse Spears is qualified on the basis of her training and experience. CR 212-219.

On appeal, CCMC insists Nurse Spears is not qualified under subsection

74.402(b)(3) because she was not “fielding phone calls at a hospital’s labor and delivery or emergency department from EMS or transfer personnel during” the time of the incident or at the time she offered her opinions. CCMC Appellee’s

Brief at 14-15. However, Nurse Spears does qualify under subsection (b)(3).

Nurse Spears’ curriculum vitae demonstrates that at the time of the incident

(May 15, 2012) she was actively practicing health care by rendering services relevant to Appellants’ claim against CCMC in that she was supervising registered nurses who fielded triage phone calls. CR 265. The evidence specifically shows   that she was employed as a clinical supervisor between May 2011–June 2014 and supervised registered nurses to ensure the proper handling of triage calls2 and patient safety. CR 265.3

In summary, CCMC waived any complaint that Nurse Spears is unqualified under 74.402(b)(2) or (b)(3) because it failed to make these complaints to the trial court. See CR 237, n.22. This argument should not be a part of the appellate review. See Tamez, 206 S.W.3d at 577. Nevertheless, even should this Court find this issue preserved for appeal, it is clear that Nurse Spears is qualified and any dismissal based on her failure to meet 74.402 requirements would have been an abuse of discretion.

REPLY POINT TWO: Appellants’ expert reports sufficiently connect CCMC’s breach of the standard of care and Yolanda’s injuries and death

A. Nurse Spears adequately stated the standard of care and breach.

CCMC complains that Nurse Spears’s opinions on the standard of care and the breach of the standard of care are conclusory. CCMC

                                                             2 “Triage” means 1: the sorting of and allocation of treatment to patients and especially battle and disaster victims according to a system of priorities designed to maximize the number of survivors; 2: the sorting of patients (as in an emergency room) according to the urgency of their need for care. WEBSTER’S THIRD NEW WORLD DICTIONARY 1683 (2002).  

3 CCMC also argues that Nurse Spears had to have been practicing in labor and delivery or an emergency department to be qualified under section 74.402(b)(3). This is incorrect. See Kelly v. Rendon, 255 S.W.3d 665, 673–74 (Tex. App.—Houston [14th Dist.] 2008, no pet.). She only needed to have been actively practicing health care services that are relevant to Appellants’ claim against CCMC. See id. 

Appellee’s Brief 22–24. As to the applicable standard of care, Nurse Spears stated:

Standard of care requires the L&D receiving team personnel of the accepting hospital to give appropriate instructions to EMS transfer personnel who call for medical advice concerning a deteriorating pregnant patient.

CR 213. In her addendum, Nurse Spears elaborated that the standard of care required that CCMC personnel “give appropriate instructions to the inquiring

Medic 192 about [Yolanda’s] deteriorating condition.” Id. 219. Nurse Spears explained CCMC’s breach:

The staff at [CCMC] L&D department breached the standard of care by advising Hidalgo County EMS to proceed to their facility while bypassing hospitals with the capabilities of care for [Yolanda] and the fetus when EMS called [CCMC] about diverting due to her deteriorating status.

Id. 213. In her addendum, she further detailed the breach, stating that “[t]he L&D staff [at CCMC] breached the standard of care by instructing Medic 192 not to divert to an alternate medical facility for evaluation.” Id. 219.

CCMC considers Nurse Spears’s opinion on the standard of care to be insufficient because she does not define what constituted “appropriate instruction,” and does not set out what care was expected from CCMC. CCMC Appellee’s

Brief at 24. Similarly, CCMC argues that Nurse Spears’s opinion on breach is vague and conclusory. CCMC Appellee’s Brief at 24.

An expert report is adequate if it demonstrates a good-faith effort to comply with the chapter 74’s requirements for expert reports, and no “magical words” are required for the report to be adequate. See Bowie Mem’l Hosp. v. Wright, 79

S.W.3d 48, 53 (Tex. 2002). Nurse Spears’s reports adequately explain what was the standard of care required: give appropriate instructions to Hidalgo County

EMS regarding Yolanda Flores’ deteriorating status. Similarly, Nurse Spears’s reports explain that CCMC breached the standard of care by instructing Hidalgo

County EMS not to divert to another hospital. Nurse Spears’s reports, thus, articulate that when faced with a patient en route from Brownsville to Corpus

Christi, in pre-term labor with an abrupt placenta resulting in acute blood loss and oxygen deprivation, CCMC nurses should have given appropriate instructions to

Hidalgo County EMS to divert to another hospital instead of advising them to continue on their trek to CCMC. See CR 213, 219.

Nurse Spears’s reports inform CCMC “of the conduct the Appellants call into question and [provides] a basis for the trial court to conclude that the claims have merit.” Salais v. Tex. Dept. Aging & Disability Serv’s., 323 S.W.3d 527, 533

(Tex. App.—Waco 2010, pet. denied) (citation omitted); Tovar v. Methodist

Healthcare Sys. of San Antonio, Ltd., L.L.P., 185 S.W.3d 65, 68 (Tex. App.—San

Antonio 2005, pet. denied) (citation omitted). Moreover, Nurse Spears’s reports   demonstrate a good-faith effort to comply with chapter 74, and are therefore an adequate expert report. See Salais, 323 S.W.3d at 538.

B. Nurse Spears’s reports do not impose a duty on CCMC that violates Texas law

CCMC asserts that Nurse Spears’s reports are inadequate because nurses do not have the authority to render a medical diagnosis. CCMC Appellee’s Brief 26-

30. However, Nurse Spears’s report on the standard of care did not impose on

CCMC and its nurses to make a medical diagnosis. See generally CR 212-19.

Nurse Spears states the standard of care in this case is for the nurses to correctly administer patient treatment by giving appropriate instructions to EMS transfer personnel who called concerning a deteriorating patient. In fact, the correct administration of treatment is incorporated in the Texas Nurse Practices Act as one of the standards of nursing practice. ^[22] TEX. ADMIN. CODE § 217.11(C). Nurse

Spears was not stating the nurses should have diagnosed the patient, but rather the nurses should have taken adequate measures to correctly administer treatment. See id. Thus, her report does not “violate Texas law.”

REPLY POINT THREE: Dr. Harlass’s report constitutes a good faith effort to comply with section 74.351

In compliance with chapter 74, Appellants served on CCMC the expert reports, and addenda, of Grace Spears, R.N. and Dr. Harlass. Nurse Spears   addressed the applicable standard of care and CCMC’s breaches, and Dr. Harlass discussed how those breaches led to Yolanda’s injuries and death.

CCMC argues that Dr. Harlass’s report does not constitute a good faith effort to comply with Section 74.351 because he does not offer a causation opinion, and even if he does, his opinion is conclusory. CCMC Appellee’s Brief

37-38. This is incorrect.

A. Dr. Harlass’s report offers a causation opinion against CCMC that is not conclusory

CCMC states that Dr. Harlass’s report “does not offer a true causation opinion against CCMC.” CCMC Appellee’s Brief at 31. CCMC specifically complains that Dr. Harlass never states in his report that CCMC’s alleged failure to instruct Hidalgo County EMS to divert caused Yolanda’s injuries or death. CCMC

Appellee’s Brief at 31.

The purpose of the causation expert’s report is to provide a “fair summary of the expert’s opinions regarding the causal relationship between the failure of the healthcare provider to provide care in accord with the pertinent standard of care and the injury, harm, or damages claimed.” Cornejo v. Hilgers, 446 S.W.3d 113,

123 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6)). “No particular words or formality are required, but bare conclusions will not suffice.” Scoresby v. Santillan, 346 S.W.3d 546, 556

(Tex. 2011) (citations omitted). A causal relationship is established by proof that   a negligent act or omission constituted a substantial factor in bringing about harm and, absent the act or omission, the harm would not have occurred. Costello v.

Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San

Antonio 2004, no pet.). The expert simply “must explain the basis of his statements and link his conclusions to the facts.” Id. (citation omitted).

Dr. Harlass determined that CCMC’s actions were a cause of Yolanda’s injuries and death. CR 91. Specifically, Dr. Harlass stated, in relevant part:

Due to the [CCMC’s] personnel’s breaches of care in informing the EMS personnel not to divert when [Yolanda] was in an emergency situation (oxygen deprivation and bleeding)…her bleeding continued unabated and she suffered cardiovascular arrest, DIC and death.

Id. at 91 (parentheses in original).

While CCMC is correct that Dr. Harlass does not use the word “cause” in his report, no particular words or formality are required. See Scoresby, 346 S.W.3d at

556. CCMC asserts that Dr. Harlass “simply state[s] that CCMC’s alleged failure to divert resulted in her pre-existing condition (abrupted placenta and bleeding) to

‘continue unabated.’” CCMC Appellee’s Brief 32-33. According to CCMC, Dr.

Harlass “never states that an instruction to divert would have allowed for timely intervention to save Ms. Flores’ life.” CCMC Appellee’s Brief at 33.

An expert report must explain, to a reasonable degree, how and why the alleged breach caused the complained of injury based on the facts presented. See

Jelinek v. Casas, 328 S.W.3d 526, 539–40 (Tex. 2010). Here, contrary to CCMC’s   assertions, Dr. Harlass’s report does just that. Dr. Harlass opines that CCMC’s failure to inform “the EMS personnel not to divert when [Yolanda] was in an emergency situation” resulted in “her bleeding [to] continue unabated.” CR 91.

And the unabated bleeding resulted in Yolanda’s “cardiovascular arrest, DIC and death.” Id.

Thus, Dr. Harlass provided a causation opinion that was not conclusory and gave a “fair summary” of his opinions “regarding the causal relationship between the failure of [CCMC] to provide care in accord with the pertinent standard of care” and Yolanda’s injuries and death. See Cornejo, 446 S.W.3d at 123; Fortner v. Hosp. of the Sw., LLP, 399 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.).

B. Dr. Harlass is qualified to render a causation opinion against CCMC

CCMC asserts that chapter 74 requires Appellants to provide an expert report from someone qualified to offer opinions on the blood loss Yolanda suffered en route to CCMC. CCMC Appellee’s Brief at 33. Dr. Harlass is so qualified.

In his expert report, Dr. Harlass notes that he has been practicing obstetrics and gynecology since 1980, and he is board certified in both Obstetrics and

Gynecology and Maternal-Fetal Medicine (“OBGYN/MFM”) by the American

Board of Obstetrics and Gynecology. CR 92. He has experience treating hundreds of patients in preterm labor with placenta previa or accreta, like Yolanda. Id.

Dr. Harlass has been a professor of, and regional chair of, OB/GYN at Texas

Tech University School of Medicine, and a director of that school’s residency program. Id. at 99. He has published a paper on placenta accreta, among dozens of other papers. Id. at 102. In addition, Dr. Harlass’s report established his familiarity with the issues involved in the claims in this case. Id. at 92.

Dr. Harlass’s report shows that he has experience in treating and diagnosing patients with the conditions suffered by Yolanda, namely preterm labor and placenta accreta. CR 91. Dr. Harlass’s report also states how Yolanda’s condition, placenta accreta, can detach and cause a patient to bleed profusely. Id. As a result of Dr. Harlass’s experience in treating hundreds of patients with Yolanda’s exact condition, his is qualified to render an opinion as to the cause of Yolanda’s death.

See Tawa v. Gentry, No. 01–12–00407–CV, 2013 WL 1694869, at *7 (Tex. App.–

Houston [1st Dist.] Apr. ^[18], 2013, no pet.) (mem. op.) (holding expert sufficiently qualified to opine on standard of care by “showing the injury involved was of the type [the expert] treated in his practice” (internal quotation marks omitted));

Hillery v. Kyle, 371 S.W.3d 482, 487 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (concluding the expert was qualified, where expert stated familiarity “with the standards of care relevant to the condition involved in th[e] claim” and he had

“diagnosed and treated, ‘patients with the conditions similar to those experienced by’” plaintiff); Rittger v. Danos, 332 S.W.3d 550 at 558–59 (Tex. App.—Houston  

[1st Dist.] 2009, no pet.) (noting focus not on defendant doctor's area of expertise, but on condition involved in claim).

REPLY POINT FOUR: Alternatively, Appellants are entitled to amend reports.

In the event this Court finds Appellants’ expert reports deficient, CCMC argues Appellants are not entitled to remand for the trial court to consider a 30-day extension. CCMC contends that “Appellants have not produced a report concluding the claims against CCMC have merit.” CCMC Appellee’s Brief 33.

To be effective, an expert report must inform the defendant about the conduct complained of and must provide a basis from which the trial court can determine whether the claims have merit. Am. Transitional Care Ctrs. of Tex., Inc.

v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The report “must address all the” statutory elements, “and omissions may not be supplied by inference.” Scoresby,

346 S.W.3d at 556.

The Supreme Court set out a “minimal standard” under which a claimant who timely files a deficient report may be entitled to a 30-day extension to cure the deficiencies rather than have his suit dismissed for failing to file a timely expert report. Id. at 557. Under this standard, a 30-day extension may be granted “if the report is served by the statutory deadline, if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant's conduct is implicated.” Id.

Here, the reports are not fatally deficient, nor can they be considered “no report” under the statute. The expert reports of Nurse Spears and Dr. Harlass in this case were timely served, were offered by individuals with expertise in caring for patients in emergency labor and delivery situations, and implicated CCMC’s conduct. See Scoresby, 346 S.W.3d at 557. Because Appellants met these minimum qualifications, they should be entitled to one 30-day extension to cure the deficiencies in the reports. See Christus Spohn Health Sys. Corp. v. Castro,

No. 13-13-00302-CV, 2013 WL 6576041, at *7 (Tex. App.—Corpus Christi Dec.

12, 2013, no pet.) (mem. op.).

PRAYER

Appellants pray that the trial court’s orders granting the motions to dismiss be reversed and the case be remanded for further proceedings.

Respectfully submitted, WEST, WEBB, ALLBRITTON & GENTRY, P.C.

1515 Emerald Plaza College Station, Texas 77845-1515 Telephone: (979) 694-7000 Facsimile: (979) 694-8000

By: /s Gaines West Gaines West State Bar No. 21197500 [email protected] Jennifer D. Jasper State Bar No.: 24027026 E-mail: [email protected]  

Donald Delgado State Bar No. 24065139 [email protected]

Counsel for Appellants

CERTIFICATE OF COMPLIANCE

I certify that this Reply BRIEF OF APPELLANTS complies with the typeface and word-count requirement set forth in the Rules of Appellate Procedure. This motion has been prepared, using Microsoft Word, in 14-point Times New Roman font for the text and 12-point Times New Roman font for any footnotes. This motion contains 3418 words, as determined by the word count feature of the word processing program used to prepare this document, excluding those portions of the notice exempted by TEX. R. APP. P. 9.4(i)(1).

/s Gaines West Gaines West  

CERTIFICATE OF SERVICE

On July 6, 2015, the undersigned certifies that he served a copy of this Reply Brief of Appellants on the following in the manner listed below, in compliance with Texas Rules of Appellate Procedure 9.5 and 25.1(e):

Nichole G. Andrews Via Facsimile ~ 713.452.4499 Christopher Knudsen ECF Email Margaret Garib [email protected] Serpe, Jones, Andrews, Collender & Bell [email protected] 2929 Allen Parkway, Suite 1600 [email protected] Houston, Texas 77019

Jeffrey D. Roerig Via Facsimile ~ 956.542.0016 David M. Roerig And ECF Email Roerig, Oliverira & Fisher, LLP [email protected] 855 West Price Road, Suite 9 [email protected] Brownsville, Texas 78520-8786

/s Gaines West Gaines West  

CASES AND STATUTES

Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

fractured led to necessity of two additional surgeries. Vernon's Ann.Texas Civ.St. art. 4590i, 79 S.W.3d 48 § 13.01(l), (r)(6).

Supreme Court of Texas.

213 Cases that cite this headnote BOWIE MEMORIAL HOSPITAL a/

k/a Bowie Hospital District d/b/a Bowie Hospital District Authority d/b/ [2] Health a Bowie Memorial Hospital, Petitioner, Affidavits of merit or meritorious defense;

v. expert affidavits Barbara WRIGHT and P.L. Wright, Respondents. For an expert's report to constitute a “good-faith effort” to comply with statutory definition No. 01–0814. | June 13, 2002. of an expert report, pursuant to the Medical Liability and Insurance Improvement Act, report Patient brought medical malpractice action against hospital, must provide enough information to fulfill two physician, physician's assistant, and others, alleging that purposes: (1) report must inform defendant failure to timely discover that her foot was fractured led to of specific conduct plaintiff has called into necessity of two additional surgeries. The 78th District Court, question, and (2) equally important, report must Wichita County, Keith Nelson, J., dismissed patient's claims. provide basis for trial court to conclude that Patient appealed. The Fort Worth Court of Appeals, 48 S.W. claims have merit. Vernon's Ann.Texas Civ.St. 3d 443, affirmed in part, reversed in part, and remanded. Upon art. 4590i, § 13.01(l), (r)(6). grant of hospital's petition for review, the Supreme Court held that expert report submitted by patient did not constitute a 259 Cases that cite this headnote good-faith effort to summarize causal relationship between hospital's alleged failure to meet applicable standards of care [3] Health and patient's injury under Medical Liability and Insurance Affidavits of merit or meritorious defense;

Improvement Act. expert affidavits

Reversed. In determining the adequacy of an expert report under the Medical Liability and Insurance Improvement Act, the trial court should look no further than the report. Vernon's Ann.Texas West Headnotes (8) Civ.St. art. 4590i, § 13.01(l).

10 Cases that cite this headnote [1] Health

Affidavits of merit or meritorious defense; expert affidavits [4] Health

Affidavits of merit or meritorious defense;

Expert report submitted by patient did not expert affidavits constitute a good-faith effort to summarize causal relationship between hospital's alleged For an expert's report to satisfy the requirements failure to meet applicable standards of care of the Medical Liability and Insurance and patient's injury under Medical Liability Improvement Act, the report need not marshal and Insurance Improvement Act; report lacked all the plaintiff's proof, but it must include the information linking expert's conclusion, which expert's opinion on each of the three elements was that patient might have had a better outcome, that the Act identifies: standard of care, breach, to hospital's alleged breach, which was that and causal relationship. Vernon's Ann.Texas it did not correctly read and act upon x-rays, Civ.St. art. 4590i, § 13.01(l). thus requiring dismissal of patient's medical 115 Cases that cite this headnote malpractice action against hospital, alleging that failure to timely discover that her foot was

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

[5] Health Attorneys and Law Firms

Affidavits of merit or meritorious defense;

expert affidavits[*50] Gregory J. Lensing, Charles T. Frazier, Jr. Cowles & Thompson, Dallas, Susan Irene Nelson, Dallas, for Petitioner. In determining the adequacy of an expert report under the Medical Liability and Insurance Britta Jean Gordon, Michael Kevin Queenan, Queenan Law Improvement Act, a report cannot merely state Firm, DeSoto, for Respondents. the expert's conclusions about standard of care, breach, and causal relationship; rather, the expert Opinion must explain the basis of his statements to link his conclusions to the facts. Vernon's Ann.Texas PER CURIAM. Civ.St. art. 4590i, § 13.01(l).

This case involves the Medical Liability and Insurance 219 Cases that cite this headnote Improvement Act's (“the Act”) expert-report requirements.

See TEX.REV.CIV. STAT. art. 4590i, § 13.01. The trial court dismissed the plaintiffs' medical malpractice claims [6] Appeal and Error after it determined that their expert report did not satisfy Rulings on Motions Relating to Pleadings the Act's requirements. The court of appeals concluded that Trial court's order dismissing a claim for failure the trial court abused its discretion when it dismissed the to comply with Medical Liability and Insurance plaintiffs' claims, because the expert report represented a Improvement Act's requirements for an expert good-faith effort to comply with the Act. 48 S.W.3d 443, 448. report is reviewed under an abuse-of- discretion We disagree. Accordingly, we reverse the court of appeals' standard. Vernon's Ann.Texas Civ.St. art. 4590i, judgment and dismiss with prejudice the Wrights' claims § 13.01(l), (r)(6). against Bowie Memorial Hospital.

73 Cases that cite this headnote Barbara Wright was admitted to Bowie after she sustained injuries in a car accident. While at Bowie, Michael Layne, a [7] Appeal and Error physician's assistant that Bowie employed, x-rayed Barbara's Abuse of discretion right knee and foot and diagnosed her with a fractured patella.

However, Layne allegedly misplaced or misread the foot x- A trial court abuses its discretion if it acts in ray and, therefore, did not discover that Barbara had also an arbitrary or unreasonable manner without fractured her right foot in the accident. Shortly after Barbara reference to any guiding rules or principles.

was admitted to Bowie, Dr. Hodde, Layne's supervisor, 171 Cases that cite this headnote recommended that Bowie refer her to an orthopedic surgeon.

Barbara was immediately referred to an orthopedic surgeon and transferred to another hospital. Her accompanying [8] Appeal and Error medical report, which Layne prepared, only indicated that Power to Review Barbara had a fractured knee.

When reviewing matters committed to the trial court's discretion, a court of appeals may not Nearly a month after the accident, Barbara's orthopedic substitute its own judgment for the trial court's surgeon discovered Barbara's fractured foot. By that time, the judgment. surgeon had already operated on Barbara's knee. The Wrights claim that the surgeon could have operated on Barbara's 89 Cases that cite this headnote foot at the same time if he had known about the injury. Instead, Barbara had two additional surgeries over the next ten months.

Barbara and her husband sued Bowie, Layne, and Dr. Hodde for medical malpractice. The Wrights also sued the orthopedic surgeon, another treating doctor, and three

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833 medical clinics not associated with Bowie. The Wrights' Nevertheless, the Wrights claimed that, if Bowie's report had allegations pertinent here are that Bowie personnel did not: indicated that Barbara had a broken foot, it would have been diagnose Barbara's foot fracture; protect her foot; review “much easier” for the orthopedic doctor to make a proper diagnostic tests ordered and administered at the hospital; or diagnosis. After the second hearing, the trial court granted properly supervise Layne. Bowie's motion to dismiss. The record indicates that the trial court did not believe the Wrights' claims against Bowie, “the The Wrights filed an expert medical report about Bowie's, people who transferred [Barbara],” had merit, given that the Dr. Hodde's, and another doctor's alleged negligence. See orthopedic surgeon “could have done his own work.” TEX.REV.CIV. STAT. art. 4590i, § 13.01(d). The expert report states, in part: The court of appeals reversed and remanded, holding that the trial court abused its discretion when it dismissed the I have reviewed the material you sent me on the above Wrights' claims against Bowie. 48 S.W.3d at 448. The case. I believe that the hospital fell below the appropriate court concluded that the report inadequately summarizes standard of care in not having a defined mechanism in place the causal relationship between Bowie's alleged negligence whereby x-rays taken in the E.R. are read by a physician and Barbara's injury. However, it determined that the report specialized in interpreting the films in a timely manner (i.e., represents a good-faith effort to comply with the Act, because less than 24 hrs). X-rays taken in the E.R. need to have it raises the possibility that, but for Bowie's breach, Barbara re-reads performed within 24 hrs and if[*51] there is a “would have had a better outcome.” 48 S.W.3d at 447. discrepency [sic] in the x-ray readings a system should be in place to inform the patient of this. There did not appear to [1] Medical-malpractice plaintiffs must provide each be any procedure that the hospital has for tracking x-rays. defendant physician and health-care provider an expert report The hospital also doesn't seem to have a system of orienting with the expert's curriculum vitae, or they must voluntarily health care professionals working in the E.R. nor any form nonsuit the action. See TEX.REV.CIV. STAT. art. 4590i, § of Q/A for P.A.'s staffing the E.R. There didn't appear to 13.01(d); American Transitional Care Ctrs. of Tex., Inc. v. be any organized system or protocols for P.A. supervision Palacios, 46 S.W.3d 873, 877 (Tex.2001). The expert report in the E.R. must provide “a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, ...

the manner in which the care rendered by the physician or I do believe that it is reasonable to believe that if the x- health care provider failed to meet the standards, and the rays would have been correctly read and the appropriate causal relationship between that failure and the injury, harm, medical personnel acted upon those findings then Wright or damages claimed.” TEX.REV.CIV. STAT. art. 4590i, would have had the possibility of a better outcome. § 13.01(r)(6). If a plaintiff timely files an expert report and the defendant moves to dismiss because of the report's Bowie moved to dismiss the Wrights' claims, alleging inadequacy, the trial court must grant the motion “only if it that the expert report “fails to establish how any act or appears to the court, after hearing, that the report does not omission of employees of Bowie Memorial Hospital caused represent a good faith effort to comply with the definition of or contributed to Ms. Wright's injuries.” Therefore, Bowie an expert report in Subsection (r)(6) of this[*52] section.” argued, the report does not satisfy the Act's requirements. TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ) (emphasis added).

The trial court held two hearings to determine if the report represents a good-faith effort to meet the Act's requirements. [2] We recently discussed the Act's expert-report See TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ). At requirement for medical-malpractice cases. See Palacios, the first hearing, the trial court asked about the causal 46 S.W.3d at 877–80. In Palacios, we explained that, relationship between Bowie's conduct and Barbara's injury. when considering a motion to dismiss under section 13.01(l The Wrights explained that if Bowie had diagnosed Barbara's ), “[t]he issue for the trial court is whether ‘the report’ fractured foot earlier, then she “probably would have had represents a good-faith effort to comply with the statutory a better outcome.” They also conceded that the orthopedic definition of an expert report.” Palacios, 46 S.W.3d at 878. specialist Barbara saw immediately after leaving Bowie To constitute a “good-faith effort,” the report must provide “had an independent duty to verify” Bowie's medical report. enough information to fulfill two purposes: (1) it must inform

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833 the defendant of the specific conduct the plaintiff has called expert report must fulfill Palacios 's two-part test. See into question, and (2) it must provide a basis for the trial court Palacios, 46 S.W.3d at 879. Thus, under the Palacios test, to conclude that the claims have merit. Palacios, 46 S.W.3d we must determine whether the trial court acted unreasonably at 879. and without reference to guiding principles when it dismissed the Wrights' claims against Bowie. See Downer, 701 S.W.2d [3] [4] [5] The trial court should look no further than at 241–42. the report itself, because all the information relevant to the inquiry is contained within the document's four corners. The Wrights primarily rely on one statement in the report to Palacios, 46 S.W.3d at 878. The report need not marshal all establish causation: “if the x-rays would have been correctly the plaintiff's proof, but it must include the expert's opinion read and the appropriate medical personnel[*53] acted upon on each of the three elements that the Act identifies: standard those findings then Wright would have had the possibility of care, breach, and causal relationship. Palacios, 46 S.W.3d of a better outcome.” In their brief to this Court, the at 878. A report cannot merely state the expert's conclusions Wrights contend that this statement “explains why Petitioners' about these elements. Palacios, 46 S.W.3d at 879. “[R]ather, damages were caused by Bowie Hospital's breach: if the the expert must explain the basis of his statements to link his proper medical personnel at Bowie had reviewed the x-rays, conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d 882, [Barbara] would have had a chance of diagnosis and treatment 890 (Tex.1999). of her foot fracture.”

[6] [7] [8] We review a trial court's order dismissing a Bowie responds that the report's statement about causation is claim for failure to comply with section 13.01(d)'s expert- conclusory, because it does not explain how Bowie's failing to report requirements under an abuse-of-discretion standard. correctly read or act upon the x-rays caused injury to Barbara. Palacios, 46 S.W.3d at 878. A trial court abuses its discretion Moreover, Bowie asserts, the statement does not even identify if it acts in an arbitrary or unreasonable manner without the specific injuries Bowie's conduct allegedly caused. reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 In reviewing the report's adequacy, the court of appeals (Tex.1985). When reviewing matters committed to the trial focused on “whether the report provides a basis to conclude court's discretion, a court of appeals may not substitute its that the claims have merit.” 48 S.W.3d at 447 (citing own judgment for the trial court's judgment. See Flores v. Palacios, 46 S.W.3d at 878–79). Although the causation Fourth Ct. of Appeals, 777 S.W.2d 38, 41 (Tex.1989). statement recognizes only the “possibility”—rather than the “reasonable medical probability”—that Barbara might have Here, the parties do not dispute that the expert report fairly had a better outcome, the court of appeals concluded that the summarizes the alleged standard of care, because it states report's adequacy should not turn “solely upon the claimant's that a hospital should have established procedures to read failure to use magical words like ‘reasonable probability.’ ” and interpret x-rays in a timely manner and to inform 48 S.W.3d at 447. Accordingly, the court of appeals held that patients about the results. See TEX.REV.CIV. STAT. art. the report met the good-faith effort test, because it gave the 4590i, § 13.01(r)(6). Also, the parties do not dispute that the trial court a basis to conclude that the Wrights' claims against report fairly summarizes how Bowie allegedly breached the Bowie have merit. 48 S.W.3d at 448. standard of care, because the report states that Bowie did not have a procedure to track x-rays. See TEX.REV.CIV. STAT. We agree with the court of appeals' conclusion that a art. 4590i, § 13.01(r)(6). Consequently, the parties only report's adequacy does not depend on whether the expert uses contest whether the report constitutes a “good-faith effort” any particular “magical words.” Nothing in the Act's plain to fairly summarize the causal relationship between Bowie's language, or in Palacios, suggests that, for these purposes, alleged breach and Barbara's injury. See TEX.REV.CIV. an expert report must express the causal relationship in terms STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at 879. of “reasonable medical probability.” However, we disagree with the court of appeals' conclusion that the trial court Contrary to the court of appeals' conclusion, it is not enough abused its discretion in dismissing the Wrights' claims against that the expert report “provided insight” about the plaintiff's Bowie. We have held that the only information relevant to claims. See 48 S.W.3d at 447. Rather, to constitute a good- whether a report represents a good-faith effort to comply with faith effort to establish the causal-relationship element, the the statutory requirements is the report itself. Palacios, 46

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

trial court could have reasonably determined that the report S.W.3d at 878. And, we have held that we review a trial court's was conclusory. See Palacios, 46 S.W.3d at 880; Earle, 998 decision about whether a report constitutes a good-faith effort S.W.2d at 890. A conclusory report does not meet the Act's to comply with the Act under an abuse-of-discretion standard. requirements, because it does not satisfy the Palacios test. Palacios, 46 S.W.3d at 878.

Palacios, 46 S.W.3d at 879.

After reviewing this report, we conclude that the trial

[*54] For these reasons, we hold that the trial court did not court could have reasonably determined that the report does abuse its discretion when it concluded that the report did not not represent a good-faith effort to summarize the causal represent a good-faith effort to meet the Act's requirements. relationship between Bowie's failure to meet the applicable Therefore, the trial court had no discretion but to dismiss standards of care and Barbara's injury. See TEX.REV.CIV.

the plaintiffs' claims against Bowie. See TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at STAT. art. 4590i, § 13.01(l ); Palacios, 46 S.W.3d at 880. 879. That is because the report simply opines that Barbara In reviewing the trial court's order, the court of appeals might have had “the possibility of a better outcome” without improperly substituted its own judgment for the trial court's explaining how Bowie's conduct caused injury to Barbara.

judgment. See Flores, 777 S.W.2d at 41. Accordingly, we We cannot infer from this statement, as the Wrights ask us to, grant Bowie's petition for review. Without hearing oral that Bowie's alleged breach precluded Barbara from obtaining argument, we reverse the court of appeals' judgment and a quicker diagnosis and treatment for her foot. Rather, the dismiss with prejudice the Wrights' claims against Bowie. See report must include the required information within its four TEX.R.APP. P. 59.1.

corners. See TEX.REV.CIV. STAT. art. 4590i, § 13.01(r) (6); Palacios, 46 S.W.3d at 878. Because the report lacks information linking the expert's conclusion (that Barbara All Citations might have had a better outcome) to Bowie's alleged breach (that it did not correctly read and act upon the x-rays), the 79 S.W.3d 48, 45 Tex. Sup. Ct. J. 833

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013) 2013 WL 6576041

On or about October 24, 2011, 50–year–old Jose Castro 2013 WL 6576041 was in a serious car accident. He was a belted passenger Only the Westlaw citation is currently available. in a Ford F–150 crew cab. The truck rolled and the roof crushed, causing severe injuries to Mr. Castro. Mr. Castro SEE TX R RAP RULE 47.2 FOR was transported via helicopter to the emergency room at DESIGNATION AND SIGNING OF OPINIONS.

Christus Spohn Hospital in critical condition. Mr. Castro MEMORANDUM OPINION sustained severe injuries including, but not limited to, Court of Appeals of Texas, fracture and dislocation of his cervical spine at C5–C6, Corpus Christi–Edinburg. multiple rib fractures, a collapsed lung, and damage to his right phrenic nerve. He remained in intensive care through CHRISTUS SPOHN HEALTH most of December 2011. Mr. Castro had no sensation or SYSTEM CORPORATION, Appellant, movement below the nipple line, putting him at high risk v. of skin breakdown. Jose CASTRO, Appellee.

In November 2011, Mr. Castro developed a pressure ulcer No. 13–13–00302–CV. | Dec. ^[12], 2013. on his tail bone. The cause was the use of the tangible property, the hospital bed. By the time Mr. Castro was On appeal from the 117th District Court of Nueces County, discharged from Christus Spohn Hospital in February Texas. Sandra Watts, Judge. 2012, the pressure ulcer had progressed to a grade III decubitus ulcer....

Attorneys and Law Firms

At all relevant times hereto, Mr. Castro was a patient of Lori W. Hanson, Beirne, Maynard & Parsons, LLP, San Christus Spohn Hospital. Antonio, TX, for Appellant.

Complaining of the pressure ulcer, in particular, Castro Collen A. Clark, The Clark Firm, Dallas, TX, for Appellee.

brought a health care liability claim against Spohn. ^[1] In that Before Chief Justice VALDEZ and Justices RODRIGUEZ claim, Castro alleged that Spohn was negligent in: its use of and GARZA. the hospital bed; its failure to develop and employ policies to oversee patients like Castro; its failure to train and supervise personnel to carry out such policies; its failure to render MEMORANDUM OPINION appropriate medical and nursing intervention to Castro; its failure to provide adequate nutritional support to Castro; its Memorandum Opinion by Justice RODRIGUEZ. failure to plan for and protect Castro from bedsores and ulcers; its failure to follow Castro's doctors' orders; and *1 Appellant Christus Spohn Health System Corporation its failure to maintain the highest practical level of care (Spohn) challenges the trial court's denial of its motion to for Castro. Castro alleged that this negligence proximately dismiss appellee Jose Castro's health care liability claim. caused the injuries he suffered at Spohn.

SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b) (West 2011). By two issues, Spohn argues that: (1) Castro's 1 In this same lawsuit, Castro has also alleged causes experts were not qualified to opine on the specific area of of action against the driver of the truck for negligence health care involved in this suit; and (2) Castro's reports were and against Ford Motor Company for products liability. contradictory and conclusory and were therefore “no reports” Neither of those causes of action are before us in this under the law. See id. § 74.351(l ), (r)(6). We reverse and accelerated, interlocutory appeal. remand.

In support of his health care liability claim, Castro timely filed two expert reports—one authored by Donna du Bois, MPH, RN and another authored by Perry Starer, M.D. Both I. Background du Bois and Dr. Starer are geriatric specialists with extensive experience in caring for pressure ulcers in hospital and Castro alleged the following facts in his petition:

nursing home settings. Spohn objected to both expert reports, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013) 2013 WL 6576041 arguing that neither du Bois nor Dr. Starer was qualified comply with the definition of an expert report in Subsection to offer opinions as to the conditions under which Castro (r)(6).”Id. § 74.351(l ); see Loaisiga v. Cerda, 379 S.W.3d suffered his injuries, i.e., the development of a pressure ulcer 248, 260 (Tex.2012). To qualify as an objective good faith in trauma care conditions while Castro was simultaneously effort, the report must (1) inform the defendant of the specific suffering from quadriplegia, diabetes, bacterial infections, conduct the plaintiff complains of, and (2) provide a basis and respiratory distress. Spohn also filed motions to dismiss for the trial court to conclude that the plaintiff's claims have Castro's health care liability claim, arguing that Castro's merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.2011) reports are “no reports” and the claim should therefore be (citing Palacios, 46 S.W.3d at 879). The report and/or its dismissed because neither du Bois nor Dr. Starer is qualified accompanying curriculum vitae (CV) must also establish and the reports are contradictory and conclusory. After a that the report's author is qualified to opine as an expert hearing, the trial court denied Spohn's objections and motions on the subject matter of the report.Leland v. Brandal, 217 to dismiss. This accelerated, interlocutory appeal followed. S.W.3d 60, 62 (Tex.App.-San Antonio 2006), aff'd on other See id. § 51.014(a)(9) (West Supp.2011). grounds,257 S.W.3d 204 (Tex.2008). Those qualifications must appear within the four corners of the expert report and cannot be inferred. Id.; see also Palacios, 46 S.W.3d at 878; Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, II. Standard of Review 117 (Tex.App.-Houston [14th Dist.] 2009, no pet.). To meet *2 We review a trial court's decision with respect to the “good faith effort” requirement, “[n]o particular words or expert reports and the qualifications of experts for an abuse formality are required, but bare conclusions will not suffice. of discretion. Larson v. Downing, 197 S.W.3d 303, 304– The report must address all the elements, and omissions 05 (Tex.2006); Jernigan v. Langley, 195 S.W.3d 91, 93 may not be supplied by inference.”Scoresby, 346 S.W.3d (Tex.2006); Am. Transitional Care Ctrs. of Tex., Inc. v. at 556 (citations omitted).“The purpose of the expert report Palacios, 46 S.W.3d 873, 876 (Tex.2001). The trial court requirement is to deter frivolous claims, not to dispose of abuses its discretion if it acts unreasonably or arbitrarily or claims regardless of their merits.”Id. at 554 (citation omitted). without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). A report meets the minimum qualifications for an expert report under the statute “if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant's conduct is implicated.”Id. at 557.If a report meets III. Applicable Law these qualifications but is deficient, the claimant is entitled to one thirty-day extension to cure the deficiencies. TEX. CIV. Under Chapter 74, an expert report is defined as:

PRAC. & REM.CODE ANN. § 74.351(c).“All deficiencies, a written report by an expert that whether in the expert's opinions or qualifications, are subject provides a fair summary of the expert's to being cured before an appeal may be taken from the trial opinions as of the date of the report court's refusal to dismiss the case.”Scoresby, 346 S.W.3d at regarding applicable standards of care, 557;see also Leland, 257 S.W.3d at 207–08 (holding that the manner in which the care rendered when elements of a timely filed expert report are found by the physician or health care deficient, either by the trial court or on appeal, one thirty-day provider failed to meet the standards, extension to cure the report may be granted). and the causal relationship between that failure and the injury, harm, or damages claimed.

IV. Qualifications of Experts

TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6). *3 By its first issue, Spohn contends that because the care When a document purporting to be an expert report is timely provided to Castro by the hospital was under intensive care served and is properly challenged, as is the case here, the trial unit (ICU) or trauma conditions, his development of pressure court “shall grant [the] motion challenging the adequacy of ulcers must be addressed in the context of those conditions. [the] report only if it appears to the court, after hearing, that And because neither du Bois nor Dr. Starer practice in the the report does not represent an objective good faith effort to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013) 2013 WL 6576041 field of ICU/trauma care, Spohn argues that they are not treatment of pressure ulcers to both physicians and nurses. qualified to author expert reports in this case. Finally, Dr. Starer states:

To be qualified to provide opinion testimony on whether In the regular course of my medical a health care provider departed from the accepted standard practice, I have occasion to diagnose of care, an expert must satisfy section 74.402. SeeTEX. and treat patients with conditions CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)(B).Section substantially similar to or identical 74.402 lists three specific qualifications an expert witness with those of Jose Castro, including must possess to provide opinion testimony on how a health mobility limitations. I have also served care provider departed from accepted standards of health care as a primary care physician for —the expert must: hospital and nursing home patients since 1985. Over the course of my (1) [be] practicing health care in a field of practice that career, I have been the primary care involves the same type of care or treatment as that physician for more than 5,000 patients delivered by the defendant health care provider, if the in hospitals and nursing homes. Many defendant health care provider is an individual, at the of those patients have struggled with time the testimony is given or was practicing that type disabilities similar to those Jose of health care at the time the claim arose; Castro experienced. Accordingly, I have cared for and treated numerous (2) [have] knowledge of accepted standards of care for patients who, like Jose Castro, were health care providers for the diagnosis, care, or treatment at risk for development of pressure of the illness, injury, or condition involved in the claim; ulcers. and *4 In their reports and CVs, neither du Bois nor Dr. Starer (3) [be] qualified on the basis of training or experience states that they have experience preventing and treating to offer an expert opinion regarding those accepted bedsores in the context of ICU or trauma care or explains how standards of health care. their fields of practice involve the same type of ICU/trauma care Spohn provided to Castro.

Id.§ 74.402(b) (West 2011).

Spohn does not dispute that du Bois is an expert in the A plaintiff offering expert medical testimony must establish field of nursing home care and Dr. Starer is an expert in the that the report's author has expertise regarding “the specific field of geriatrics and nursing home care, or that these fields issue before the court which would qualify the expert to give regularly involve the prevention and treatment of pressure an opinion on that particular subject.”Broders v. Heise, 924 ulcers. Rather, Spohn argues that neither expert is practicing S.W.2d 148, 153 (Tex.1996). Our analysis of the proffered or has otherwise relevant experience in ICU/trauma care, expert's qualifications focuses on “the very matter” on which which is the relevant field of practice in this case. We agree. the expert is to give an opinion. Id.

In his petition, Castro alleges that he remained in Spohn's trauma unit and ICU from October 24, 2011 through most of Here, du Bois's CV shows that she has over thirty years'

December 2011 as a result of the severe injuries he sustained experience as a nurse, primarily in the field of nursing home in the car accident, including a collapsed lung, multiple care and other long-term facility care. In her report, du Bois broken ribs, and a fractured and dislocated spine. In their stated that she is familiar with the standard of care for the descriptions of Castro's conditions, both du Bois and Dr. “prevention of pressure ulcers... expected by ordinary prudent Starer acknowledge these serious injuries and that Castro was nurses in Texas.”In his report, Dr. Starer states that he is “a being cared for under intensive care or trauma conditions. practicing physician licensed by the State of New York.”Dr.

Castro then alleges that his pressure ulcer developed in Starer states that he has been “board certified in Internal November 2011, which is while he was in the ICU. In short, Medicine and Geriatrics” since 1985. Dr. Starer states that under the facts alleged in his own petition, it is clear that he teaches in the field of geriatrics at Mount Sinai School the care provided to Castro by Spohn was trauma and ICU of Medicine and has given lectures on the prevention and care. Castro's pressure ulcer developed in this context, and his experts must be qualified to opine on his injury in the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013) 2013 WL 6576041 context of these conditions. Examining only what is within is not without limits. See Walker, 111 S.W.3d at 62 (holding the four-corners of the experts' reports and CVs, see Palacios, that a court abuses its discretion if it acts without reference to 46 S.W.3d at 878; Pokluda, 283 S.W.3d at 117, we find guiding rules and principles). Castro was required to submit nothing in either du Bois or Dr. Starer's reports that meets this reports authored by experts who are “practicing health care requirement. in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care Castro argues that Spohn's characterization of the relevant provider,” have “knowledge of accepted standards of care ... field of practice in this case sets the bar too high, that for the diagnosis, care, or treatment of the illness, injury, Spohn is essentially requiring Castro to find a specialist in or condition involved in the claim,” and are “qualified on the treatment of “a 50–year–old quadriplegic with diabetes, the basis of training or experience to offer an expert opinion PEG tube feeding, with a tracheostomy [sic] and neurologic regarding those accepted standards of health care.”SeeTEX. deficits, with prior cardiac arrest and suffering from bacterial CIV. PRAC. & REM.CODE ANN. § 74.402(b). Focusing on infections.”This characterization overstates what is required the specific issue before the trial court as alleged in Castro's in this case. Although it is true that an expert need not be a petition, see Broders, 924 S.W.2d at 153, we cannot conclude practitioner in the same specialty as the defendant to qualify that the information provided in du Bois and Dr. Starer's as an expert, see Broders, 924 S.W.2d at 153, he or she reports show them to be practicing in the relevant field of is only competent if he or she has practical knowledge of practice or show them to have any other relevant experience what is usually and customarily done by a practitioner under giving them knowledge of the standard of care for the specific circumstances similar to those confronting the defendant. See conditions in this case. SeeTEX. CIV. PRAC. & REM.CODE Ehrlich v. Miles, 144 S.W.3d 620, 625 (Tex.App.-Fort Worth ANN. § 74.402(b); Blan, 7 S.W.3d at 746. As such, the trial 2004, pet. denied). In other words, the proper inquiry in court did not follow guiding rules and principles in denying assessing an expert's qualifications to submit a report is not Spohn's objections to the expert's qualifications and motion his or her area of expertise but his or her familiarity with to dismiss on this basis. Spohn's first issue is sustained. the specific issues involved in the claim before the court. See Blan v. Ali, 7 S.W.3d 741, 746 (Tex.App.-Houston [14th Dist.] 1999, no pet.); see also Broders, 924 S.W.2d at 153.

IV. Sufficiency of Report

Here, as discussed above, Castro's petition includes facts showing that the circumstances under which he developed By its second issue, Spohn argues that Castro's reports were his pressure ulcer involved trauma and ICU treatment of his contradictory and conclusory and are therefore “no report” severe injuries following the accident. His expert must be under the statute. SeeTEX. CIV. PRAC. & REM.CODE qualified to render an opinion on the applicable standard ANN. § 74.351(r)(6); Scoresby, 346 S.W.3d at 551–52. of care in those circumstances—i.e., the prevention and/or treatment of pressure ulcers in the context of ICU/trauma First, Spohn argues that because du Bois and Dr. Starer 2 identified different conduct as breaches of the standard of care. We are not persuaded by Castro's argument to the contrary. care, their reports, taken together, are inherently inconsistent.

See Fung v. Fischer, 365 S.W.3d 507, 530 (Tex.App.-Austin 2 We note that neither du Bois nor Dr. Starer's reports 2012), overruled on other grounds, Certified EMS, Inc. v. foreclose the possibility that they are qualified in this Potts, 392 S.W.3d 625 (Tex.2013) (“Reliable expert opinion case and may need only to connect the experience should ... be free from internal inconsistencies.”). Spohn they have gained in their thirty-plus year careers to contends that du Bois identified only two breaches in her the conditions in this case. See infra sections V, VI report: that the nurses caring for Castro failed to make (remanding for entry of an order granting Castro a thirty- accurate records and failed to create an appropriate treatment day extension to amend his reports). During his thirty- plan for the prevention of pressure ulcers. Spohn contends day extension, see id., Castro is also entitled to serve that Dr. Starer likewise identified only two breaches of care the reports of additional experts. See In re Buster, 275 in his report: the nurses' failure to correctly use Castro's bed S.W.3d 475, 477 (Tex.2008). and failure to turn Castro more frequently. In our review of *5 While “[t]he qualification of a witness as an expert is [a du Bois's report, we found that she also identified as breaches matter] within the trial court's discretion,”Larson, 197 S.W.3d of the standard of care that the nurses caring for Castro at 304 (citing Broders, 924 S.W.2d at 151), such discretion failed to reposition Castro as needed, failed to assess his skin

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013) 2013 WL 6576041 after each turn, and failed to properly assess and provide for Castro's nutritional needs. And again, in our review of Dr. Finally, Spohn argues that the reports do not adequately Starer's report, we found that he also identified as breaches establish causation because they do not “explain how taking of the standard of care that the Spohn staff caring for Castro any particular action would have prevented the development “failed to properly develop a care plan for ulcer prevention” of a pressure ulcer given the complex medical issues involved and “failed to maintain an accurate and complete clinical in [Castro]'s care.” Spohn argues that “[w]ithout addressing record.”In light of the full range of conduct identified by [these] critical issues, it is impossible to know if [Castro]'s du Bois and Dr. Starer, we disagree with Spohn that the pressure ulcer could have been prevented.” On this account, breaches identified in the separate reports are contradictory; we agree with Spohn. Although du Bois and Dr. Starer's for that matter, having examined the reports in their entirety, reports go into great detail about the procedures necessary we note that du Bois and Dr. Starer identified largely the same to prevent pressure ulcers in standard conditions, they do breaches. not address the specific conditions present in Castro's care.

As discussed in detail above, Castro's claim involves his *6 But assuming for the sake of argument that the breaches development of a pressure ulcer while he was being treated in the reports are limited to those identified by Spohn, in Spohn's ICU over the course of several months for severe we believe that Dr. Starer's report identified additional injuries he suffered in an automobile accident. Neither du instances of conduct that breached the standard of care. Read Bois nor Dr. Starer discusses Castro's injuries in the context together in the manner in which they are characterized by of these conditions. And the omission of this context renders Spohn, the reports are not contradictory, but provide a more any conclusion on the cause of Castro's injuries incomplete. complete picture of the instances of conduct giving rise to Because Castro's reports do not adequately address the Castro's claim. SeeTEX. CIV. PRAC. & REM.CODE ANN. § causation element, they did not provide a basis for the 74.351(i) (“Nothing in this section shall be construed to mean trial court to conclude that Castro's claims have merit. See that a single expert must address all liability and causation Palacios, 46 S.W.3d at 879. The reports therefore do not issues with respect to all physicians or health care providers amount to a good faith effort to comply with the statute and or with respect to both liability and causation issues for are deficient. See Scoresby, 346 S.W.3d at 556 (requiring that a physician or health care provider.”). Thus, we are not the report adequately address all the elements to qualify as persuaded by Spohn's argument in this regard, and the trial a good-faith effort). The trial court abused its discretion in court did not abuse its discretion in denying Spohn's motion denying Spohn's objections and motions to dismiss on this to dismiss on this basis. Spohn's second issue is overruled in basis. See Walker, 111 S.W.3d at 62. Spohn's second issue is so far as it depends on this argument. sustained as to its causation argument.

Spohn next argues that du Bois's report, in particular, did no more than “state that nurses failed to keep accurate records V. Thirty–Day Extension or to implement appropriate plans of care.”Spohn argues that du Bois was required to “state what documentation *7 Although Castro's expert reports are deficient in that was inaccurate, what documentation was lacking, on what they do not establish the authors' qualifications and do not dates it was wrong or missing and who was responsible adequately address causation, we do not believe the reports for that charting.”But du Bois's report includes the exact are fatally deficient, or “no report” under the statute. Both elements that Spohn claims are required. Du Bois refers to meet the minimum qualifications set out in Scoresby—both specific medical record dates and page numbers throughout du Bois and Dr. Starer are individuals with expertise who her report and specifically identifies what she characterizes opine about Castro's injuries in great detail and implicate the as the deficiencies in those records. Where du Bois points conduct of Spohn's staff. See346 S.W.3d at 557. Because out that certain details are missing from the records, she Castro met these minimum qualifications, he is entitled to one does not specify page numbers, but as she is pointing to thirty-day extension to cure the deficiencies in his reports. the absence of something, we cannot fault her for failing to SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c); specify where that missing detail is not located. In short, we see also Scoresby, 346 S.W.3d at 557 (holding that all are not persuaded by Spohn's generalized assertions in this deficiencies, whether in an expert's opinion or qualifications, regard. Again, Spohn's second issue is overruled in so far as are subject to being cured). This disposition is consistent with it depends on this argument. the goal of the statute, which is to deter frivolous claims but

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013) 2013 WL 6576041

a thirty-day extension to amend his expert reports. SeeTEX. not dispose of claims regardless of their merits. See Scoresby, CIV. PRAC. & REM.CODE ANN. § 74.351(c).

346 S.W.3d at 554.

All Citations VI. Conclusion

Not Reported in S.W.3d, 2013 WL 6576041 We reverse the order of the trial court denying Spohn's motion to dismiss and remand for entry of an order granting Castro

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without 446 S.W.3d 113 reference to guiding rules or principles.

Court of Appeals of Texas, Houston (1st Dist.). Cases that cite this headnote Angela CORNEJO and Carlos Portillo, Appellants v. [3] Appeal and Error Stephen J. HILGERS, M.D., Appellee. Power to Review When reviewing matters committed to a trial No. 01–13–00752–CV. | Aug. 14, 2014. court's discretion, an appellate court may not substitute its own judgment for that of the trial Synopsis court.

Background: Mother sued obstetrics and gynecology resident for medical malpractice in connection with brain Cases that cite this headnote injury sustained by her newborn child. Defendant moved to dismiss mother's claims on grounds that one of mother's experts was not qualified to address causation, and her [4] Appeal and Error medical expert reports were insufficient as to element of Abuse of discretion causation. The 190th District Court, Harris County, granted A trial court does not abuse its discretion motion. Mother appealed. merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance.

Holdings: The Court of Appeals, Terry Jennings, J., held that: Cases that cite this headnote

[1] mother's expert was qualified to opine on issue of causation, and [5] Health Affidavits of merit or meritorious defense;

[2] mother's expert reports were sufficient as to causation. expert affidavits

If a health care defendant files a motion to dismiss challenging the adequacy of a claimant's Reversed and remanded. expert report, a trial court must grant the motion if it appears, after a hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report, West Headnotes (14) under Medical Liability Act, or is not sufficiently specific to provide a basis for the trial court to [1] Appeal and Error conclude that the claims have merit. V.T.C.A., Dismissal or nonsuit before trial Civil Practice & Remedies Code § 74.351. Appellate review of a trial court's decision on a Cases that cite this headnote motion to dismiss a health care liability claim is for an abuse of discretion.

[6] Health Cases that cite this headnote Affidavits of merit or meritorious defense;

expert affidavits [2] Appeal and Error In setting out the expert's opinions in support of Abuse of discretion a health care liability claim, the expert's report must provide enough information to fulfill two purposes: first, it must inform the defendant of the specific conduct the plaintiff has called into

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

question, and, second, it must provide a basis standard of care and the injuries suffered by for the trial court to conclude that the claims patient's baby upon delivery and, thus, presented have merit. V.T.C.A., Civil Practice & Remedies an objective, good faith effort to comply with Code § 74.351. the statute governing expert reports in health care liability actions; reports explained link between Cases that cite this headnote brain injuries suffered by baby and resident's failure to recognize patient's risk factors and [7] Evidence the late deceleration on the fetal heart monitor, Due care and proper conduct in general and physician's failure to take action before delivery, by admitting patient to the hospital and Though not certified in neonatology, pediatric continuing the fetal monitoring. V.T.C.A., Civil neurology, or maternal-fetal medicine, board- Practice & Remedies Code § 74.351(r)(6).

certified OB/GYN (obstetrics/gynecology) physician was qualified based on his experience Cases that cite this headnote and expertise to render expert opinion in medical malpractice action as to alleged cause of brain injury sustained by newborn child as result of [11] Health failing to admit mother to hospital, continue to Affidavits of merit or meritorious defense; monitor fetal heart rate, the fetus for progressive expert affidavits hypoxia and ischemia, and expedite delivery. In assessing the sufficiency of an expert report in Rules of Evid., Rule 702. a health care liability action, a trial court may not draw inferences; instead, it must exclusively rely Cases that cite this headnote upon the information contained within the four corners of the report. V.T.C.A., Civil Practice & [8] Evidence Remedies Code § 74.351.

Determination of question of competency

Cases that cite this headnote Qualification of witness as expert is within trial court's discretion. Rules of Evid., Rule 702.

[12] Health Cases that cite this headnote Affidavits of merit or meritorious defense;

expert affidavits [9] Evidence No particular words or formality are required in Knowledge, experience, and skill in general expert report under Medical Liability Act, but bare conclusions will not suffice. V.T.C.A., Civil A physician need not practice in the particular Practice & Remedies Code § 74.351(r)(6).

field about which he is testifying to qualify as an expert witness so long as he can demonstrate that Cases that cite this headnote he has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify him to give an opinion [13] Health on that subject. Rules of Evid., Rule 702. Affidavits of merit or meritorious defense;

expert affidavits Cases that cite this headnote In a health care liability action, the requirement that an expert report provide causal relationship [10] Health between the failure to meet the applicable Affidavits of merit or meritorious defense; standard of care and the plaintiff's injury, harm, expert affidavits or damages claimed is established by proof that the negligent act or omission constituted Medical expert reports, provided a fair summary a substantial factor in bringing about the harm of the causal relationship between obstetrics and and absent the act or omission, the harm would gynecology resident's failure to meet appropriate

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

not have occurred. V.T.C.A., Civil Practice & 1 See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a) Remedies Code § 74.351(r)(6). (10) (Vernon Supp. 2013).

Cases that cite this headnote 2 See id. § 74.001(a)(13) (Vernon Supp. 2013).

3 Defendants Mae Kathleen Borchardt, M.D., formerly [14] Health known as Mae Kathleen Hayes, M.D., John Cecil Affidavits of merit or meritorious defense; McBride, M.D., Bridgette Parish, M.D., Danielle expert affidavits Niemeyer, R.N., Jamie Respondek, R.N., Mayoor Bhatt, An expert report need not marshal all of the M.D., Sharon Ann Woodson, R.N., and St. Joseph Medical Center are not parties to this appeal.

plaintiff's proof necessary to establish causation at trial in a health care liability action, and it 4 Although Cornejo and Portillo present three issues, their need not anticipate or rebut all possible defensive first issue, in which they generally challenge the trial theories that may ultimately be presented to court's order dismissing their claims is, in fact, part of the trial court; rather the expert must simply their second and third issues. Accordingly, we address provide some basis that a defendant's act or Cornejo and Portillo's two substantive issues. omission proximately caused injury and he must 5 See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) explain the basis of his statements and link his (Vernon Supp. 2013).

conclusions to the facts. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6). We reverse and remand.

Cases that cite this headnote

Background

In their amended petition, Cornejo and Portillo allege that on Attorneys and Law Firms December 2, 2010, Cornejo, who was forty weeks' pregnant, presented at St. Joseph Medical Center with gestational[*115] L. Todd Kelly, The Carlson Law Firm, P.C., Austin, hypertension and headaches. Dr. Hilgers, an obstetrics and TX, for Appellants. gynecology resident, examined Cornejo and conducted an ultrasound and electronic fetal monitoring, which, at 8:28 John C. Landa, Jr., Lucille Reiter King, Lapin & Landa, LLP, p.m., showed increasing contractions and an irregularity in Houston, TX, for Appellee.

the fetal heart rate. Nevertheless, Hilgers discharged Cornejo Panel consists of Justices JENNINGS, HIGLEY, and at 8:40 p.m., with instructions to return in four days. SHARP.

Cornejo returned to St. Joseph thirteen hours later with elevated blood pressure, headaches, “visual disturbances,” and reporting decreased fetal activity. It was determined OPINION that the onset of Cornejo's labor occurred at 5:00 a.m. TERRY JENNINGS, Justice. on December 3rd. Nurses J. Respondek and D. Niemeyer placed Cornejo on a fetal heart rate monitor, the readings In this interlocutory appeal, 1 appellants, Angela Cornejo of which were “reassuring, with good variability.” 6 Minutes and Carlos Portillo, challenge the trial court's dismissal of[*116] later, however, there was a “dramatic decrease in fetal their health care liability claims 2 against appellee, Stephen heart rate variability,” and Cornejo was taken to labor and Hilgers, M.D. ^[3] In two issues, 4 Cornejo and Portillo contend delivery. At 11:10 a.m., Drs. K. Hayes and B. Parish attended that the trial court erred in dismissing their claims against Dr. Cornejo, whose membranes were artificially ruptured, and Hilgers on the grounds that one of their medical experts is not they noted the presence of “thick meconium.” Shortly qualified to opine on the issue of causation and both of their thereafter, the fetal monitor showed “minimal variability” and medical expert reports 5 are insufficient as to causation. “late decelerations.” 7 At 11:20 a.m., Cornejo signed consent forms for a Cesarean section delivery. St. Joseph personnel

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Cornejo v. Hilgers, 446 S.W.3d 113 (2014) then repositioned Cornejo and continued to monitor the fetal amended reports. Cornejo and Portillo stipulated that Dr. heart strip, which showed “occasional late decelerations” with Yoder's expert report would not be offered as to Hilgers. “no accelerations of the fetal heart.” Cornejo was sent to the operating room shortly after 1:00 p.m., and her baby was 9 See TEX. CIV. PRAC. & REM.CODE ANN. § delivered at 1:41 p.m. Although the baby was “blue” and did 74.351(a). not cry, she was resuscitated.

Cornejo and Portillo then filed and served Dr. Hall's amended medical expert report. As Dr. Hilgers notes in his brief on 6 A baby's heart rate is monitored as a means of appeal, Hall's curriculum vitae does not appear in the record assessing the baby's oxygenation, including oxygenation before us. In his amended report, however, Hall notes that he of the baby's brain. See Morrell v. Finke, 184 S.W.3d is board certified in obstetrics and gynecology, is licensed to 257, 262 (Tex.App.-Fort Worth 2005, pet. denied). A practice medicine in the state of Colorado, is affiliated with fetal heart monitor strip is read at regular intervals several hospitals, and serves as an assistant clinical professor to determine whether the baby's heart rate reflects “hypoxia,” a deficiency of oxygen reaching the tissues at the University of Colorado. Hall further states: of the body that could lead to depletion of the baby's I am familiar with the standard of care applicable to oxygen reserves over time, resulting in brain damage.

the management of medical and obstetrical complications See id. A fetal heart monitor strip will be either “reassuring” or “nonreassuring.” See id. Following a in pregnancy, management of labor, use of Pitocin, contraction, “reassuring” accelerations show that the interpretation of electronic fetal monitoring (EFM), baby is oxygenated and tolerating labor. See id. at 263. A abnormal fetal heart rate patterns, and evidence of fetal normal variation in the fetal heart rate is also a reassuring hypoxia as predicted by the fetal heart rate pattern. I am sign of fetal well-being. See id. at 262–63. also very well aware, that regardless of who is caring for 7 the laboring patient, whether Ob/Gyn, resident, or labor In his medical expert report, Dr. Michael L. Hall, Cornejo and delivery nurse, that the standards of care regarding and Portillo's expert, explained that “[d]ecreased long- recognition of ominous findings on fetal monitor strip are term fetal heart rate variability” and “persistent late the same....

decelerations” in a baby's heart rate are “nonreassuring” and can be “ominous” signs of hypoxia or asphyxia.

[*117] As an obstetrician, I have cared for numerous Cornejo's baby was later diagnosed with hypoxic-ischemic pregnant patients with the same or similar clinical encephalopathy, a severe, permanent brain injury caused circumstances as those [Cornejo] presented with.... I have by a lack of oxygen and blood flow. ^[8] At two months of taught nurses and residents fetal monitoring and have age, she showed a history of renal injury, secondary to worked closely with nurses and residents for 34 years, metabolic acidosis and hypoxic injury, and mild spasticity and I am familiar with what reasonable and prudent in all extremities. At two years of age, she presented with nurses, residents and obstetricians would or would not seizures and significant developmental impairment. do in response to abnormal electronic fetal heart patterns and management of Pitocin. The standards of care in the 8 interpretation of electronic fetal monitoring, recognition See Morrell, 184 S.W.3d at 275 & n. 12.

of abnormal patterns, and recognition of the need for Cornejo and Portillo sued Dr. Hilgers for negligence, seeking intervention [are] the same across these professionals, damages for past and future medical expenses and mental although the roles of each may be different in intervening anguish. To support their claims, they timely filed and served for the same. upon Hilgers medical expert reports 9 authored by Michael L. Hall, M.D., Jerry J. Tomasovic, M.D., and Bradley A. .... Yoder, M.D. Hilgers objected to Drs. Hall's and Tomasovic's Based on my education, training, years of experience, reports on the ground that they failed to sufficiently address familiarity with the medical literature and my board the element of causation. Hilgers also objected to Hall's report certification in OB/GYN, I am familiar with the probable on the ground that Hall is not qualified to opine on the issue causes of ... hypoxic-ischemic injuries in babies generally of causation. The trial court sustained Hilgers's objections and with the probable causes of the injuries to [Cornejo's and allowed Cornejo and Portillo thirty days to file and serve baby] in this case. Specifically, during my many years of practice, I ... read the medical literature, reviewed

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Cornejo v. Hilgers, 446 S.W.3d 113 (2014) case studies and have followed the care for babies with the same or similar clinical presentation as [Cornejo's He added: baby]. I have kept current on the medical studies and We know that the deterioration would literature regarding babies who have suffered hypoxic- have been evident given the difference ischemic encephalopathy (HIE) from events at or around in the quality of the fetal monitor the time of birth. I have also seen infants in my education, tracing ... between December 2, 2010 training and experience who have suffered from hypoxic- before the late deceleration at the ischemic encephalopathy (HIE) from events at around the end and the tracing the following time of birth.

morning when she presented again to the Hospital. Tracings do not suddenly Dr. Hall goes on to explain that he reviewed Cornejo's become nonreassuring unless there prenatal records, labor and delivery records, and the is an acute cord accident that we electronic fetal monitor strip. He notes that the applicable know did not occur in this case. standard of care for Dr. Hilgers was to recognize certain

In reasonable medical probability, risk factors with which Cornejo presented and are “well there was plenty of opportunity to known to increase the risk of fetal intolerance to the uterine see the deterioration occur had she environment, increasing the foreseeability of progressive been monitored, and any ordinary, hypoxia and ischemia and need for expeditious delivery reasonably prudent obstetrician (or of the fetus.” Specifically, Cornejo, prior to the time resident acting under his or her that Hilgers discharged her, presented with decreased fetal supervision), would have delivered movement, gestational hypertension, suspected intrauterine

[Cornejo's baby] before she actually growth restriction, and late deceleration on the electronic fetal presented again the following morning monitor. Due to the risk factors present, and because there was according to the chronology.

a “late deceleration just prior to the end of the fetal monitor strip” at 8:28 p.m. on the evening that Hilgers examined As to causation, Dr. Hall opines that Dr. Hilgers “should Cornejo, Hall opines that Hilgers had a duty to admit Cornejo have known” that the risk factors present in this case “may to the hospital, rather than discharge her, and continue to foreseeably cause fetal intolerance even to normal labor monitor the fetal heart rate, the fetus for progressive hypoxia which may induce sufficient stress to produce a lack of and ischemia, and the need to expedite delivery.

blood flow to the fetus (hypoxia), which foreseeably may produce acidosis (asphyxia), which may foreseeably cause Dr. Hall further opines that Dr. Hilgers breached “the standard brain injury.” And he notes that, of care of any resident providing obstetrical services” by:

[Cornejo's baby] suffered progressive • “failing to recognize the risk factors at the time of the hypoxia and acidosis, as a result of premature discharge on December 2, 2010, discuss those the delay in delivery caused by Dr. with the ‘OB/GYN specialist’ and admit [Cornejo] to the Hilgers'[s] ... breaches in the standard Hospital”;

of care. Because [Cornejo] was not • “discontinuing fetal heart rate monitoring on December kept overnight, she arrived in a more 2, 2010, in the face of a late deceleration (a critical state, setting into motion a potentially ominous finding suggestive of uteroplacental chain of events which required more insufficiency given the risk factors discussed above)”; timely action after [she] returned [the next morning] with a persistently • “failing to continuously monitor the fetal heart rate and progressively abnormal electronic patterns on the evening and morning of December 2–3, fetal monitor pattern which was not 2010”; and resolved.

• “failing to deliver [Cornejo's baby] due to a progressively Dr. Hall further opines that, deteriorating[*118] fetal status which would have been evident on fetal monitoring.”

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

cannot “address whether the standard of care was breached more likely than not, had [Cornejo's baby] been delivered in doing so,” he is able to opine that “the late deceleration by Dr. Hilgers and/or the OB/GYN specialist assigned of the fetal heart most likely relates to the beginning of a to supervise him, she would have been neurologically period of hypoxia.” He further opines that, “to a reasonable intact at the time of birth, would not have had difficulty degree of medical probability (and in reliance upon the with the newborn resuscitation, would not have developed expert opinions of Dr. Hall), ... [Cornejo's baby] suffered pneumothoraces, would not have had an additional episode a significant portion of her injuries due to the failure to of documented severe metabolic acidosis, and would likely deliver her before progressive hypoxia and ischemia deprived be normal today.... her brain tissue of well-oxygenated blood and neuro[l]ogic injury occurred in utero.” And, “[h]ad she been monitored ....

throughout the night rather than discharged by Dr. Hilgers [T]he care rendered [Cornejo] by Dr. Hilgers was deficient and the hospital personnel, ... her progressive intolerance —falling well below the standard of care owed to of the uterine environment would have been evident and this patient.... Within a reasonable degree of medical the opportunity would have presented itself to deliver her probability, the negligent breaches in the standard of care timely (as opined by Dr. Hall) and before permanent [and] by ... Dr. Hilgers substantially contributed to the direct and irreversible brain damage occurred.” “In other words,” proximate cause of the hypoxic ischemic encephalopathy according to Tomasovic, “had she been delivered before her noted in [Cornejo's baby]. mother presented again the next morning to the Hospital, she would not have suffered her injuries.”

Cornejo and Portillo also filed and served Dr. Hilgers with Dr. Tomasovic's amended expert report. Although Tomasovic's Dr. Hilgers moved to dismiss Cornejo and Portillo's claims curriculum vitae also does not appear in the record before on the grounds that Dr. Hall “is not qualified to address us, he, in his amended report, notes that he is a board- causation” and the amended medical expert reports by Drs. certified pediatric neurologist and has been in private practice Hall and Tomasovic are insufficient as to the element for twenty-eight years. He “remain[s] actively supportive of causation because they are “inherently grounded in of two major medical center neonatal intensive care units speculative assumptions.” Specifically, Hilgers argued that and [has] been involved in the care of neonates and infants the experts' theories that “had [Cornejo] been kept in the who have experienced hypoxic-ischemic encephalopathy and hospital longer on 12/2, the fetal heart tracing would, at some hypoglycemia.” point or points that night, have shown a pattern indicative of fetal deterioration,” and, “based on the assumed patterns on Dr. Tomasovic notes that he met with Cornejo's child the heart tracing, at some unspecified time during the night on January 15, 2013 to address her “current neurologic of 12/2 or the early morning of 12/3, a health care provider condition as it relates to events involving her birth and would have interpreted the situation as requiring a cesarean subsequent treatment, and whether there is medical causation delivery and proceeded with delivery” were conjectural. After between such treatment” and her condition. After noting a hearing, the trial court, without stating its reasons, granted his discussion with her parents about the child's behavior Hilgers's motion to dismiss Cornejo and Portillo's health care and development and his own observations, Tomasovic liability claims. states[*119] that the child's “findings [are] consistent with microcephaly, a mild hemiparesis with motor coordination issues, and an encephalopathic condition with impaired Standard of Review expressive language.” He concludes that “it is medically probable” that when she reaches adulthood, Cornejo's child [1] [2] [3] [4] We review a trial court's decision on a “will not be able to be independent or employable.” motion to dismiss a health care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. After his review of Dr. Hall's report and the medical records v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Gray v. CHCA of Cornejo and her baby, Dr. Tomasovic observes that Bayshore L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston “Cornejo was evaluated on December 2nd, 2010, for transient [1st Dist.] 2006, no pet.). A trial court abuses its discretion blood pressure elevations which were stable resulting in her if it acts in an arbitrary or unreasonable manner without discharge home on that date at 20:29 hours.” Although he reference to guiding rules or principles. Jelinek v. Casas,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

328 S.W.3d 526, 539 (Tex.2010). When reviewing matters question, and, second, it must provide a basis for the trial court committed to a trial court's discretion, we may not substitute to conclude that the claims have merit. Scoresby, 346 S.W.3d our own judgment for that of the trial court. Bowie Mem'l at 553–54. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would Dr. Hall's Qualifications in a similar circumstance. Harris Cnty. Hosp. Dist. v. Garrett, [7] In their second issue, Cornejo and Portillo argue that, 232 S.W.3d 170, 176 (Tex.App.-Houston [1st Dist.] 2007, no to the extent the trial court granted Dr. Hilgers's motion pet.). to dismiss their claims on the ground that Dr. Hall is not qualified to address the issue of causation, it erred because Hall's extensive expertise and training qualify him “to recognize the risk and to prevent the injury” suffered[*120] Sufficiency of Expert Reports by Cornejo's baby and “to understand the causal link to” the baby's “neurologic injury” due to Hilgers's breach of In their two issues, Cornejo and Portillo argue that the trial the pertinent standard of care. In his motion to dismiss court erred in dismissing their claims against Dr. Hilgers Cornejo and Portillo's claims, Hilgers argued that Hall because, contrary to his assertions, Dr. Hall is qualified to “is not qualified to address causation” because he “is not opine on the issue of causation and both Drs. Hall and certified in neonatology, pediatric neurology, or maternal- Tomasovic adequately address the issue in their amended fetal medicine.” And he complained that Hall “does not treat medical expert reports. ^[10] newborns.”

10 The applicable standard of care and the manner in which To be qualified to opine on the causal relationship between Dr. Hilgers allegedly breached that standard are not at a defendant-physician's alleged failure to meet an applicable issue in this appeal. standard of care and a plaintiff's injury, the author of an A health care liability claimant must timely provide each expert report must be a physician who is qualified to render defendant health care provider with an expert report. See opinions on such causal relationships under the Texas Rules TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon of Evidence. TEX. CIV. PRAC. & REM.CODE ANN. § Supp. 2013); Gray, 189 S.W.3d at 858. The report must 74.351(r)(5); see also id. § 74.403(a) (Vernon 2011) (“[A] provide a “fair summary” of the expert's opinions as of person may qualify as an expert witness on the issue of the date of the report regarding the applicable standards of the causal relationship between the alleged departure from care, the manner in which the care rendered by the health accepted standards of care and the injury, harm, or damages care provider failed to meet the standard, and the causal claimed only if the person is a physician and is otherwise relationship between that failure and the injury, harm, or qualified to render opinions on that causal relationship under damages claimed. See TEX. CIV. PRAC. & REM.CODE the Texas Rules of Evidence.”). ANN. § 74.351(r)(6). The expert report requirement may be satisfied by utilizing more than one expert report, and a court[*121] An expert witness may be qualified on the basis of may read the reports together. See id. § 74.351(i). knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects if the [5] [6] If a defendant files a motion to dismiss challenging testimony would “assist the trier of fact” in understanding the adequacy of a claimant's expert report, a trial court must the evidence or determining a fact issue. TEX.R. EVID. 702. grant the motion if it appears, after a hearing, that the report Thus, a plaintiff must show that her expert has “knowledge, does not represent an objective good faith effort to comply skill, experience, training, or education” regarding the with the definition of an expert report or is not sufficiently specific issue before the court that would qualify the expert to specific to provide a basis for the trial court to conclude give an opinion on that particular subject. Broders v. Heise, that the claims have merit. Id. § 74.351(1); Scoresby v. 924 S.W.2d 148, 153–54 (Tex.1996). Santillan, 346 S.W.3d 546, 555–56 (Tex.2011). In setting out the expert's opinions, the report must provide enough [8] [9] Whether an expert witness is qualified under rule information to fulfill two purposes: first, it must inform the 702 lies within the sound discretion of a trial court. Id. at defendant of the specific conduct the plaintiff has called into 151–52. Not every licensed physician is qualified to testify on every medical question. Id. at 152–53. A physician need

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

Cornejo v. Hilgers, 446 S.W.3d 113 (2014) not practice in the particular field about which he is testifying prudent” residents and obstetricians “would or would not do so long as he can demonstrate that he has knowledge, skill, in response to abnormal electronic fetal heart patterns.” experience, training, or education regarding the specific issue before the court that would qualify him to give an opinion[*122] Dr. Hall further notes that, based on his “education, on that subject. Roberts v. Williamson, 111 S.W.3d at 113. training, years of experience, familiarity with the medical Analysis of the expert's qualifications to opine as an expert on literature[,] and ... board certification in OB/GYN,” he is the subject matter of the report is limited to the four corners “familiar with the probable causes of ... hypoxic-ischemic of the expert report or its accompanying curriculum vitae. See injuries in babies generally and with the probable causes of TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a); In re the injuries to [Cornejo's baby] in this case.” During his years McAllen Med. Ctr., Inc., 275 S.W.3d 458, 463 (Tex.2008). of practice, he has “read the medical literature, reviewed case studies and ... followed the care for babies with the same Here, Cornejo and Portillo were required to establish that Dr. or similar clinical presentation” as Cornejo's baby. Hall has Hall is qualified on the basis of “knowledge, skill, experience, “kept current on the medical studies and literature regarding training, or education” to offer opinions concerning the causal babies who have suffered hypoxic-ischemic encephalopathy link between the alleged breaches of the standard of care by (HIE) from events at or around the time of birth.” And he has Dr. Hilgers and the injuries suffered by Cornejo's baby. See “seen infants” in his “education, training and experience who TEX.R. EVID. 702; Roberts, 111 S.W.3d at 122. have suffered from hypoxic-ischemic encephalopathy (HIE) from events at around the time of birth.”

In his brief to this Court, Dr. Hilgers argues that Dr. Hall is not qualified to render an opinion as to causation because he is Dr. Hall's report demonstrates that he has specific expertise not a perinatologist, neonatologist, neurologist, “or any other in the areas of obstetrical complications in pregnancy, medical specialist who routinely takes care of babies or who management of labor, interpretation of electronic fetal diagnoses and treats brain injuries”; “does not say he provides monitoring, abnormal fetal heart rate patterns, and evidence ongoing medical care or treatment to neonates (outside of the of fetal hypoxia as predicted by fetal heart rate patterns. delivery process)”; “does not say he diagnoses or treats babies And he specifically notes that he is familiar, based on his with brain damage”; and “does not identify any specific, education, training, and experience, with the probable causes relevant training or experience that would qualify him to of hypoxic-ischemic injuries in babies generally and with the provide expert opinions about how Dr. Hilgers'[s] conduct on probable causes of the injuries to Cornejo's baby in this case. 12/2 caused [Cornejo's baby's] injuries, sustained later.” And This is the type of expertise involved in the claims asserted Hilgers complains that Hall is “not shown to be qualified to by Cornejo and Portillo in this case. address the opinions at the heart of his causation theory: what a fetal monitor tracing ‘would have shown.’ ” In Roberts v. Williamson, the Texas Supreme Court held that a board-certified pediatrician was qualified to render an Dr. Hall, in his expert report, explains that he is board certified expert opinion as to a newborn baby's neurological injuries. in obstetrics and gynecology, is licensed to practice medicine 111 S.W.3d at 121–22. There, after their baby suffered in the state of Colorado, is affiliated with several hospitals, brain damage, parents sued two physicians, alleging that and serves as an assistant clinical professor at the University a malfunctioning ventilator, delay in treatment, and failure of Colorado. He specifically states that he is “familiar with to transfer the baby to a better-equipped hospital combined the standard of care applicable to the management of medical to proximately cause the baby's injuries. Id. at 115. The and obstetrical complications in pregnancy, management of physicians argued that the parents' expert, Dr. McGehee, a labor, ... interpretation of electronic fetal monitoring (EFM), board-certified pediatrician, was not qualified to testify as abnormal fetal heart rate patterns, and evidence of fetal to the nature and extent of the child's neurological injuries hypoxia as predicted by the fetal heart rate pattern.” Hall notes because he was not a neurologist. Id. at 121. The court that, as an obstetrician, he has “cared for numerous pregnant considered that McGehee held certifications in pediatric patients with the same or similar clinical circumstances” advanced life-support and advanced trauma life-support, had as those Cornejo presented to Dr. Hilgers. Moreover, he studied the effects of pediatric neurological injuries, and had has taught residents fetal monitoring and has “worked extensive experience advising parents about the effects of closely with ... residents for 34 years.” And Hall specifically such injuries. Id. at 121–22. Accordingly, it held that the trial explained that he is “familiar with what reasonable and court did not err in admitting McGehee's testimony because,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

Cornejo v. Hilgers, 446 S.W.3d 113 (2014) although he was not a neurologist, the record reflected that what Hilgers's “calls ‘speculation’ or ‘conjecture’ is, in he had experience and expertise regarding the specific causes fact, the physicians stating to a ‘reasonable [degree of] and effects of the injuries at issue. Id. at 122. medical probability’ what most likely caused” the injuries to Cornejo's baby. In his motion to dismiss Cornejo and In Livingston v. Montgomery, parents sued five physicians Portillo's claims, Hilgers argued that Hall and Tomasovic's after their child suffered severe neurological injuries just amended medical expert reports do not adequately address prior to birth. 279 S.W.3d 868, 870 (Tex.App.-Dallas 2009, the element of causation because their causation theory no pet.). The parents alleged that the physicians failed to “is inherently grounded in speculative assumptions” and “intervene in the face of fetal distress on non-reassuring “conjecture.” fetal heart rate patterns.” Id. The physicians argued that the parents' expert, an obstetrician, was not qualified to opine [11] [12] An expert report must provide a fair summary “as to causation of neurological injuries or conditions—much of the expert's opinions regarding the causal relationship less pediatric neurological injuries.” Id. at 873. The court between the failure of the health care provider to provide explained that the issue was not who was qualified to testify care in accord with the pertinent standard of care and about whether a neurologist could have saved the patient's life the injury, harm, or damages claimed. See TEX. CIV. by treating his neurological injuries. Id. at 877. Rather, the PRAC. & REM.CODE ANN. § 74.351(r)(6). In assessing the causation issue related to the duty of health care providers sufficiency of a report, a trial court may not draw inferences; to recognize potential harm and take appropriate actions. instead, it must exclusively rely upon the information Id. Because the parents' expert had experience in managing contained within the four corners of the report. Wright, 79 labor and delivery, his expertise qualified him to opine on the S.W.3d at 52. “No particular words or formality are required causal relationship[*123] between labor and delivery and the [in the expert report], but bare conclusions will not suffice.” complications that stem from labor and delivery, including a Scoresby, 346 S.W.3d at 556. newborn's neurological injuries. Id.

[13] [14] A causal relationship is established by proof that Here, based on his experience in managing obstetrical the negligent act or omission constituted a substantial factor complications in pregnancy and labor, interpreting electronic in bringing about the harm and absent the act or omission, fetal monitoring and abnormal fetal heart rate patterns, and the harm would not have occurred. Costello v. Christus Santa recognizing fetal hypoxia as predicted by fetal heart rate Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex.App.- patterns, Dr. Hall is qualified to opine as to the causal San Antonio 2004, no pet.). However, an expert report need relationship between a newborn's injuries and the failure not marshal all of the plaintiff's proof necessary to establish of a resident or obstetrician to recognize complications causation at trial, and it need not anticipate or rebut all in pregnancy and take appropriate actions. The law does possible defensive theories that may ultimately be presented not require him to be “certified in neonatology, pediatric to the trial court. Wright, 79 S.W.3d at 52; Fortner v. Hosp. of neurology, or maternal-fetal medicine” or “treat newborns” the Sw., LLP, 399 S.W.3d 373, 383 (Tex.App.-Dallas 2013, to be qualified to so opine. Accordingly, we hold that the no pet.). The expert must simply provide some basis that a trial court, to the extent that it granted Dr. Hilgers's motion to defendant's act or omission proximately caused injury. Id. at dismiss the claims of Cornejo and Portillo on the ground that 53. And the expert must explain the basis of his statements Hall is not qualified to opine on the issue of causation, abused and link his conclusions to the facts. Id. at 52. its discretion. See Keo v. Vu, 76 S.W.3d 725, 733 (Tex.App.- Houston [1st Dist.] 2002, pet. denied).[*124] In his amended medical expert report, 11 Dr.

Tomasovic notes that he examined Cornejo's child We sustain Cornejo and Portillo's second issue. specifically to assess her “current neurologic condition as it relates to events involving her birth and subsequent treatment, and whether there is medical causation between such Causation treatment” and her condition. He concludes that his findings [10] In their first issue, Cornejo and Portillo argue that are “consistent with microcephaly, a mild hemiparesis with the trial court, to the extent it granted Dr. Hilgers's motion motor coordination issues, and an encephalopathic condition to dismiss their claims on the ground that Drs. Hall and with impaired expressive language” and “it is medically Tomasovic did not adequately address the issue of causation in their amended medical expert reports, erred because

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

Cornejo v. Hilgers, 446 S.W.3d 113 (2014) probable” that she “will not be able to be independent or birth are not responsible, at least employable.” in part, for her neurological injuries because they had not yet occurred.

11 The parties dispute whether Drs. Hall's and Tomasovic's All are complicit in failing to rescue original expert reports should be considered with their her from a foreseeably progressive amended reports in evaluating whether the doctors hostile uterine environment which was adequately addressed the causation issue. Dr. Hilgers the source of all of her injuries and quotes extensively from the original expert reports and complications .... points out inconsistencies between the original and amended reports. Cornejo and Portillo argue that once In his amended medical expert report, Dr. Hall states his they submitted amended expert reports, the original familiarity “with the probable causes of ... hypoxic-ischemic reports were supplanted. An amended expert report injuries in babies generally and with the probable causes of served after a thirty-day extension granted by the the injuries to [Cornejo's baby] in this case.” He notes that trial court, as here, supersedes any initial report filed by the claimant. Otero v. Leon, 319 S.W.3d 195, Dr. Hilgers “should have known” that the risk factors present 204–05 (Tex.App.-Corpus Christi 2010, pet. denied); in this case “may foreseeably cause fetal intolerance even to HealthSouth Corp. v. Searcy, 228 S.W.3d 907, 909 normal labor which may induce sufficient stress to produce a (Tex.App.-Dallas 2007, no pet.) (holding that amended lack of blood flow to the fetus (hypoxia), which foreseeably expert report “supplants” previously filed report); see may produce acidosis (asphyxia), which may foreseeably also Packard v. Guerra, 252 S.W.3d 511, 515–16, 534– cause brain injury.” And Hall emphasizes that, 35 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (considering previously filed reports that were refiled[*125] [Cornejo's baby] suffered and “supplemented”). Thus, we consider only the progressive hypoxia and acidosis, as a amended expert reports in conducting our analysis. result of the delay in delivery caused In regard to causation specifically, Dr. Tomasovic opines by Dr. Hilgers'[s] ... breaches in the that “the late deceleration of the fetal heart most likely standard of care. Because [Cornejo] relates to the beginning of a period of hypoxia” and “to a was not kept overnight, she arrived in a reasonable degree of medical probability (and in reliance more critical state, setting into motion upon the expert opinions of Dr. Hall), ... [Cornejo's child] a chain of events which required suffered a significant portion of her injuries due to the more timely action after [she] returned failure to deliver her before progressive hypoxia and ischemia [the next morning] with a persistently deprived her brain tissue of well-oxygenated blood and and progressively abnormal electronic neurolo[g]ic injury occurred in utero.” And he emphasizes fetal monitor pattern which was not that, “[h]ad she been monitored throughout the night rather resolved. than discharged by Dr. Hilgers and the hospital personnel, ...

Dr. Hall further opines that, her progressive intolerance of the uterine environment would have been evident and the opportunity would have presented more likely than not, had [Cornejo's baby] been delivered itself to deliver her timely (as opined by Dr. Hall) and by Dr. Hilgers and/or the OB/GYN specialist assigned before permanent [and] irreversible brain damage occurred.” to supervise him, she would have been neurologically “In other words,” according to Tomasovic, “had she been intact at the time of birth, would not have had difficulty delivered before her mother presented again the next morning with the newborn resuscitation, would not have developed to the Hospital, she would not have suffered her injuries.” He pneumothoraces, would not have had an additional episode emphasizes that, of documented severe metabolic acidosis, and would likely be normal today....

It is a legal fiction rather than a medical reality to suggest that any of the .... health care providers responsible for making decisions regarding delivery [T]he care rendered [Cornejo] by Dr. Hilgers was deficient from the evening of December 2, —falling well below the standard of care owed to 2010 until the time of [the child's] this patient.... Within a reasonable degree of medical

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

Cornejo v. Hilgers, 446 S.W.3d 113 (2014) probability, the negligent breaches in the standard of care baby occurred during Hilgers's treatment of Cornejo on by ... Dr. Hilgers substantially contributed to the direct and December 2nd, it is sufficient that, in their reports, the experts proximate cause of the hypoxic ischemic encephalopathy “state[ ] a chain of events that begin with a health care noted in [Cornejo's baby]. provider's negligence and end in personal injury.” McKellar v. Cervantes 367 S.W.3d 478, 485 (Tex.App.-Texarkana Further, Hall explains in great detail how the effects of 2012, no pet.); see Patel v. Williams, 237 S.W.3d 901, 905 hypoxia and asphyxia are cumulative and progressive, the (Tex.App.-Houston [14th Dist.] 2007, no pet.); Costello, 141 role of fetal heart monitoring, and the medical relationship S.W.3d at 249. between the late deceleration on the monitor in this case and the injuries suffered by Cornejo's baby. In McKellar, Cervantes was a patient of Dr. McKellar and saw him regularly for prenatal care of her high-risk In his appellate brief, Dr. Hilgers argues, as he did in his twin pregnancy. 367 S.W.3d at 481. McKellar admitted motion to dismiss, that Drs. Hall's and Tomasovic's expert Cervantes to the hospital during the course of her pregnancy reports are insufficient because their “proximate causation with suspicion of preeclampsia. Id. When the twins were theory ... is inherently grounded in speculative assumptions.” delivered via Caesarean section the day after admission, one Specifically, he characterizes their causation theory thusly: of the babies, “Alek,” was diagnosed with encephalopathy. “had [Cornejo] been kept in the hospital longer on 12/2, the Id. Cervantes brought a health care liability claim against fetal heart tracing would, at some point or points that night, McKellar, and her expert opined in his report that when a have shown a pattern indicative of fetal deterioration,” and, patient is admitted with Cervantes's conditions, the standard “based on the assumed patterns on the heart tracing, at some of care mandated that the fetal well-being be assessed upon unspecified time during the night of 12/2 or the early morning admission, yet Cervantes was not placed on an external fetal of 12/3, a health care provider would have interpreted the monitor until more than twenty-eight hours after admission. situation as requiring a cesarean delivery and proceeded Id. at 487. The expert opined that McKellar's failure to with delivery.” Hilgers notes that Tomasovic asserted no expeditiously discover and address the recurring variable “identifiable injury” to Cornejo's baby during his treatment decelerations with absent long-term variability in Alek's heart and neither expert asserted that “the standard of care required rate resulted in brain damage. Id. at 486. The court of appeals [him] to deliver [Cornejo's baby] during his care.” held that the report sufficiently put McKellar on notice of the conduct about which Cervantes complained and further In their reports, however, Drs. Hall and Tomasovic do provided the trial court with a basis to conclude that her claim more than “speculate.” They explain the link between against McKellar had merit. Id. at 490. the specific injuries suffered by Cornejo's baby and Dr. Hilgers's alleged failure to recognize Cornejo's risk factors We conclude that Drs. Hall and Tomasovic, in their amended and the late deceleration on the fetal heart monitor, and medical expert reports, provided a fair summary of the his failure to take action—by admitting Cornejo to the causal relationship between Dr. Hilgers's failure to meet the hospital and continuing the fetal monitoring. See Jelinek, appropriate standard of care and the injuries suffered by 328 S.W.3d at 539–40 (“[T]he expert must ... explain, to a Cornejo's baby. See TEX. CIV. PRAC. & REM.CODE ANN. reasonable degree, how and why the breach caused the injury § 74.351(r)(6). Thus, the reports presented an objective, based on the facts presented.”). Hall opines that Hilgers's good faith effort to comply with the statute. Id. § 74.351(1); failure to comprehend the dangers and take appropriate Scoresby, 346 S.W.3d at 555–56. Accordingly, we hold that action constituted a substantial factor in bringing about the trial court, to the extent that it granted Hilgers's motion to the injuries suffered by Cornejo's baby and, absent such dismiss the claims of Cornejo and Portillo on the ground that omission, the harm would not have occurred. Likewise, the reports did not adequately address the issue of causation, Tomasovic agrees that had Cornejo's baby been monitored abused its discretion. throughout the night, rather than discharged by Dr. Hilgers and the hospital personnel, “her progressive intolerance of We sustain Cornejo and Portillo's first issue. the uterine environment would have been evident and the opportunity would have[*126] presented itself to deliver her timely (as opined by Dr. Hall) and before permanent [and] irreversible brain damage occurred.” Although neither Conclusion Hall nor Tomasovic opines that a specific injury to Cornejo's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11

Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

We reverse the order of the trial court and remand the case

All Citations to the trial court for further proceedings not inconsistent with this opinion. 446 S.W.3d 113

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12

Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (2004)

defendant of the specific conduct the plaintiff has called into question, and (2) it must provide 141 S.W.3d 245 a basis for the trial court to conclude that the Court of Appeals of Texas, claims have merit. Vernon's Ann.Texas Civ.St. San Antonio. art. 4590i, § 13.01(l ) (2003).

Alicia COSTELLO, Individually and on Behalf

8 Cases that cite this headnote of the Estate of Delia Lozano, Appellant, v. CHRISTUS SANTA ROSA HEALTH [2] Appeal and Error

CARE CORPORATION, Appellee. Dismissal or nonsuit before trial

Court of Appeals reviews a trial court's dismissal No. 04–03–00597–CV. | June 23, 2004. of a suit for failure to comply with the Texas Medical Liability and Insurance Improvement Synopsis Act under an abuse of discretion standard. Background: Representative of patient's estate brought Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l medical malpractice action against hospital, alleging that ) (2003). patient's death from cardiac arrest was caused by negligent care of hospital emergency room staff. Hospital moved to Cases that cite this headnote dismiss lawsuit on basis that representative's expert reports did not meet requirements of Texas Medical Liability and [3] Evidence Insurance Improvement Act. The 288th Judicial District Cause and effect Court, Bexar County, Martha Tanner, J., dismissed lawsuit with prejudice. Representative appealed. Registered nurse did not qualify as expert to provide her opinion as to cause of patient's death, in medical malpractice action; for nurse to give medical opinion as to cause of patient's death Holdings: The Court of Appeals, Phylis J. Speedlin, J., held necessarily demanded ability to make medical that: diagnosis, but nurse was expressly prohibited under Nursing Practice Act from rendering [1] registered nurse did not qualify as expert to provide her medical diagnoses. V.T.C.A., Occupations Code opinion as to cause of patient's death, and § 301.002(2); Rules of Evid., Rule 702.

[2] report of expert witness as to cause of patient's death was 11 Cases that cite this headnote conclusory, and thus was insufficient to meet requirements of Texas Medical Liability and Insurance Improvement Act.

[4] Evidence

Due care and proper conduct in general Affirmed. Although it is generally true that a licensed registered nurse has more education and training on medical issues than a lay person, a nursing license does not automatically qualify the West Headnotes (9) registered nurse as an expert on every medical subject in a medical malpractice action.

[1] Health

10 Cases that cite this headnote Affidavits of merit or meritorious defense;

expert affidavits To meet the requirements of the Texas Medical [5] Evidence Liability and Insurance Improvement Act, an Necessity of qualification expert report must provide enough information Trial court must ensure that those who purport to fulfill two purposes: (1) it must inform the to be experts truly have expertise concerning the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (2004)

actual subject about which they are offering an Affidavits of merit or meritorious defense; opinion. Rules of Evid., Rule 702. expert affidavits An expert witness's report in a medical accessible and available to the citizens of Texas....

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

In 1995, the Legislature required that the expert report itself 36 TEX. CIV. PRAC. & REM.CODE § 74.351(a). be filed and raised the amount of the bond or deposit posted 37 Id. § 74.351(r)(6).

in lieu of a report to $5,000. 28 The amendment retained the ninety-day initial deadline but added that even if a bond 38 Id. §§ 74.351(r)(5), 74.401–.403. or deposit were posted, an expert report and curriculum The Act now distinguishes between missing a deadline vitae must be filed within 180 days of initiating suit. 29 altogether and serving an inadequate report. Section The amendment specified the qualifications the expert was 74.351(b) provides that required to have 30 and defined the report as one “provid[ing] a fair summary of the expert's opinions ... regarding [i]f, as to a defendant ..., an expert report has not been applicable standards of care, the manner in which the care served [by the deadline], the court, on the motion of the rendered by the physician or health care provider failed to[*554] [defendant], shall, subject to Subsection (c), enter meet the standards, and the causal relationship between that an order that:

failure and the injury, harm, or damages claimed.” 31 The (1) awards [the defendant] reasonable attorney's fees and failure to make “a good faith effort” to comply 32 could costs of court ...; and result in dismissal with prejudice and liability for attorney (2) dismisses the claim with respect to the [defendant] with fees as well as costs. 33 But if the failure—even missing the prejudice to the refiling of the claim. 39 deadline completely 34 —was “not intentional or the result of conscious indifference but was the result of an accident or 39 Id. § 74.351(b).

mistake,” the trial court was required to grant “a grace period of 30 days to permit the claimant to comply”. 35 Under section 74.351(l ), the same consequences attend serving an inadequate report that “does not represent an 28 objective good faith effort” to comply with the Act's Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986, formerly TEX.REV.CIV. requirements. 40 But before those consequences are imposed, STAT. ANN.. art. 4590i, § 13.01(a) [hereinafter 1995 the Act provides an opportunity for deficiencies to be Act]. cured. Section 74.351(a) requires that any objection to the 29 sufficiency of a report be lodged within twenty-one days of 1995 Act, former art. 4590i, § 13.01(d). service, 41 and section 74.351(c) provides:

30 1995 Act, former art. 4590i, §§ 13.01(r)(5) & 14.01. 31 40 Id. § 74.351(l ).

1995 Act, former art. 4590i, § 13.01(r)(6).

32 41 Id. § 74.351(a).

1995 Act, former art. 4590i, § 13.01(l ).

33 1995 Act, former art. 4590i, § 13.01(e). If an expert report has not been served [by the deadline] 34 because elements of the report are found deficient, the court Stockton v. Offenbach, 336 S.W.3d 610, 616 (Tex.2011) ( “Under article 4590i, a plaintiff could obtain an may grant one 30–day extension to the claimant in order to extension, even when no report was provided by the cure the deficiency.” 42 deadline, if the plaintiff could show an ‘accident or 42 TEX. CIV. PRAC. & REM.CODE § 74.351(c). mistake’ in failing to furnish a timely report.”).

[8] [9] [10] The Act's thirty-day extension to cure 35 1995 Act, former art. 4590i, § 13.01(g). deficiencies replaces the 1995 law's thirty-day “grace period” The Medical Liability Act, adopted in 2003 and now in effect, for “accident or mistake”, shifting the focus from the eliminates the bond/deposit alternative, shortens the deadline claimant's conduct to the report's contents. But the importance for the expert report and curriculum vitae to 120 days (unless of an appropriate delay in finally dismissing a claim for extended by agreement), and requires service rather than want of an adequate report is undiminished. The purpose of filing. 36 The Act retains the definition of an expert report 37 the expert report requirement is to deter frivolous claims, 43 not to dispose of claims regardless of their merits. “The but is more specific about an expert's qualifications. 38 Legislature has determined that failing to timely file an expert

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413 report, or filing a report that does not evidence a good-faith extension under Section 74.351”. 48 In a series of cases, we effort to comply with the definition of an expert report, means have explained the limits of this review mechanism. that the claim is either frivolous, or at best has been brought prematurely.” 44 But the Legislature has likewise recognized 47 In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461–462 that when an expert report can be cured in thirty days, the (Tex.2008). claim is not frivolous. It must be remembered that “ ‘[t]here 48 TEX. CIV. PRAC. & REM.CODE § 51.014(a)(9); Act are constitutional limitations upon the power of courts ... to dismiss an action without affording a party the opportunity for of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.03, 2003 Tex. Gen. Laws 847, 849.

a hearing on the merits of his cause’ ”, 45 and those limitations constrain the Legislature no less in requiring dismissal. If an expert report is timely served, even without a curriculum vitae, we held in Ogletree v. Matthews that the 43 trial court's denial of a motion to dismiss, asserting the Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 report's inadequacy, cannot be appealed if the court also S.W.3d 873, 878 (Tex.2001) (“And one purpose of the expert-report requirement is to deter frivolous claims.”). grants a thirty-day extension to cure deficiencies. 49 “This

44 prohibition,” we said, “is both logical and practical.” 50 Id.

Otherwise, 45 TransAmerican Natural Gas Corp. v. Powell, 811

S.W.2d 913, 918 (Tex.1991) (quoting Societe 49 262 S.W.3d at 321. Internationale v. Rogers, 357 U.S. 197, 209–210, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958), citing Hammond 50 Id. Packing Co. v. Arkansas, 212 U.S. 322, 350–351, 29 S.Ct. 370, 53 L.Ed. 530 (1909), and Hovey v. Elliott, 167 the court of appeals would address the report's sufficiency U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897); accord Ins. while its deficiencies were presumably being cured at the Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, trial court level, an illogical and wasteful result. Moreover, 456 U.S. 694, 705–706, 102 S.Ct. 2099, 72 L.Ed.2d 492 because the Legislature authorized a single, thirty day (1982)); see also Walker v. Gutierrez, 111 S.W.3d 56, 66 extension for deficient reports, health care providers (Tex.2003).

face only a minimal delay before a report's sufficiency For these reasons, we have held that trial courts should may again be challenged and the case dismissed, if be lenient in granting thirty-day extensions and must do warranted. 51 so if deficiencies in an expert report can be cured within 51 Id.

the thirty-day period. This “minimal delay before a report's sufficiency may again be challenged and the case dismissed, If after an extension has been granted, the defendant again 46 moves to dismiss, we held in Lewis v. Funderburk that a if warranted” does not impair the purpose of the Act. denial of the motion is appealable. 52 46 Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007).

52 253 S.W.3d 204, 207–208 (Tex.2008).

If no expert report is timely served, we held in Badiga v. B

Lopez that the denial of a motion to dismiss is appealable, Under the MLIIA, there was no interlocutory appeal from even if the court grants an extension. 53 The Medical Liability the denial of a motion[*555] to dismiss a health care Act, unlike the MLIIA, does not authorize an extension if no liability claim for failure to comply with the expert report report is timely served. Granting an extension not authorized requirement, and we did not make clear until 2008 that by section 74.351 does not preclude appeal. But because an review by mandamus was available. 47 In adopting the appeal is available, we held in In re Watkins that review by Medical Liability Act in 2003, the Legislature permitted an mandamus is not available. 54 interlocutory appeal from an order denying “all or part of the relief sought by a motion under Section 74.351(b), except 53 274 S.W.3d 681, 685 (Tex.2009). that an appeal may not be taken from an order granting an

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

54 279 S.W.3d 633, 634 (Tex.2009). all the elements, 62 and omissions may not be supplied by The present case requires us to determine whether a document inference. 63 served on a defendant can be so lacking in substance that it does not qualify as an expert report, and therefore an 59 Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 immediate appeal from the denial of a motion to dismiss is (Tex.2002) (per curiam) (“[A] report's adequacy does available under Badiga. not depend on whether the expert uses any particular ‘magical words.’ ”).

60 Palacios, 46 S.W.3d at 879 (“The report can be informal C in that the information in the report does not have to meet the same requirements as the evidence offered in a [11] The Act defines an expert report to be summary-judgment proceeding or at trial.”).

a written report by an expert that 61 Id. (“A report that merely states the expert's conclusions provides a fair summary of the expert's about the standard of care, breach, and causation does not opinions as of the date of the report fulfill these two purposes.”). regarding applicable standards of care, 62 Id. (“Nor can a report meet these purposes and thus the manner in which the care rendered constitute a good-faith effort if it omits any of the by the physician or health care statutory requirements.”). provider failed to meet the standards, 63 See Bowie Mem'l Hosp., 79 S.W.3d at 53 (“[T]he report and the causal relationship between that failure and the injury, harm, or must include the required information within its four corners.”). damages claimed. 55

[12] But as we have seen, the Act allows a claimant a thirty-day period to cure deficiencies before the trial court finally 55 TEX. CIV. PRAC. & REM.CODE § 74.351(r)(6).

determines that the report is inadequate and the claim must The qualifications and experience necessary for an expert be dismissed. In Ogletree, we rejected the argument that a are prescribed in great detail. 56 The adequacy of a report is deficient report is no report. 64 There, the claimant provided determined by whether it “represent[s] an objective good faith the opinion of a radiologist, without a curriculum vitae, on a effort to comply” with[*556] the statutory definition. 57 As urologist's standard of care. 65 Dr. Ogletree argued that the we have explained: report was really no report at all, but we held that despite its shortcomings, it “implicated Dr. Ogletree's conduct”, so that 56 Id. §§ 74.351(r)(5), 74.401–.403. the trial court was authorized to grant a thirty-day extension,

57 and an appeal was prohibited. 66 Id. § 74.351(l ).

64 Ogletree v. Matthews, 262 S.W.3d 316, 320–321 In setting out the expert's opinions on each of those (Tex.2007).

elements, the report must provide enough information to fulfill two purposes if it is to constitute a good-faith effort. 65 Id. at 318. First, the report must inform the defendant of the specific 66 Id. at 321.

conduct the plaintiff has called into question. Second, and equally important, the report must provide a basis for the [13] [14] Ogletree's holding, though sound, can be 58 extended only so far. To stretch the meaning of deficient trial court to conclude that the claims have merit. 58 to include a sheet of paper with the two words, “expert Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 report”, written on it would mock the Act's requirements. The S.W.3d 873, 879 (Tex.2001).

expert report in Lewis was substantively no more than that No particular words 59 or formality 60 are required, but bare —one physician's thank-you letter to another for referring conclusions will not suffice. 61 The report must address the patient. 67 In determining where to draw the line, we are guided by two considerations. One is that the Act's principal

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413 purpose is to reduce the expense of health care liability trial court did not specifically address the matter, and it is claims. The Legislature could reasonably have determined premature for us to consider it. But the dissent's arguments, that that purpose is served by an interlocutory appeal from the we believe, show the wisdom of our approach in determining denial of a motion to dismiss for want of an adequate expert what qualifies as an expert report. report, but as we observed in Ogletree, permitting two such appeals—one before the thirty-day cure period and one after 68 See TEX. CIV. PRAC. & REM.CODE § § 74.351(r)(5), —is simply wasteful. The other consideration is the goal of 74.401(a), (c). the Act's expert report requirement: to deter frivolous claims.

The dissent acknowledges that, as in Ogletree, a radiologist An inadequate expert report does not indicate a frivolous is qualified to opine on “whether the urologist should claim if the report's deficiencies are readily curable.

have involved radiology-related devices and techniques (the specialty in which the expert was qualified) in treating 67 Lewis v. Funderburk, 191 S.W.3d 756, 762–763 the patient and whether the failure to do so resulted in (Tex.App.-Waco 2006) (Gray, C.J., dissenting), rev'd, injury.” 69 In that instance, the dissent contends, there is an 253 S.W.3d 204 (Tex.2008).

“apparent closely-related connection” between radiology and[*557] [15] [16] We conclude that a thirty-day extension neurology. 70 The dissent sees no such connection between to cure deficiencies in an expert report may be granted if the report is served by the statutory deadline, if it contains neurology and ENT surgery that damages the brain. 71 But the opinion of an individual with expertise that the claim surely a neurologist's expertise is relevant in explaining has merit, and if the defendant's conduct is implicated. We the connection between the Physicians' injury to blood recognize that this is a minimal standard, but we think it is vessels during surgery and the hemiparesis and weakness necessary if multiple interlocutory appeals are to be avoided, Simon suffered. What further relevance that expertise has to and appropriate to give a claimant the opportunity provided Santillan's claim should first be addressed by the trial court. by the Act's thirty-day extension to show that a claim has In no event, however, do we think a claimant's opportunity to merit. All deficiencies, whether in the expert's opinions or cure and a defendant's immediate right to appeal should turn qualifications, are subject to being cured before an appeal may on such fine distinctions, either in an expert's qualifications be taken from the trial court's refusal to dismiss the case. or in his opinions.

69 Post at ––––.

III 70 Id.

[17] [18] [19] Dr. Marable's letter in this case easily 71 Id. meets this standard. Claiming expertise as a neurologist, This case also demonstrates the difficulty with any more he described the injury to Samuel's brain, ascribed it to stringent standard. The trial court denied the Physicians' the Physicians' breach of the standards of care, and stated motions to dismiss and ordered that Santillan have a thirty- that their breach caused Samuel's partial paralysis and other day extension to cure deficiencies in Dr. Marable's report lingering debilities. As an expert report, Dr. Marable's letter nearly three years ago. Santillan had already served an was deficient. For example, it did not state the standard amended report, in response to which the Physicians had filed of care but only implied that it was inconsistent with the renewed objections[*558] and again moved to dismiss the Physicians' conduct. But there is no question that in his case. Now that we have dismissed this appeal for want of opinion, Santillan's claim against the Physicians has merit.

jurisdiction, the trial court will rule on the objections to the amended report and the motions to dismiss. Whatever the [20] The dissent argues that Dr. Marable was not qualified ruling, another appeal will undoubtedly follow. Our holding to give an opinion about the Physicians' conduct because he today will all but eliminate the first, wasteful appeal. Just as is only a neurologist, not a surgeon, and therefore his letter is importantly, it will help assure that a claimant, after being so deficient it does not qualify as an expert report. The Act apprised of a defendant's objections to an expert report, and requires that Dr. Marable's knowledge, training or experience, having had an opportunity to discuss those objections at a and practice be “relevant” to Santillan's claim. 68 We express hearing before the trial court, will have a fair opportunity to no view on the adequacy of Dr. Marable's qualifications; the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11

Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413 cure any deficiencies and demonstrate that his claim is not 4 In re Watkins, 279 S.W.3d 633, 636 (Tex.2009) (Willett, frivolous and should be determined on the merits. J., concurring).

In Ogletree v. Matthews, I described what I naively hoped ***

would be “a rare bird in Texas legal practice” 5 —a plaintiff Accordingly, the judgment of the court of appeals dismissing passing off as a bona fide report a document so facially absurd this appeal for want of jurisdiction is that, “no matter how charitably viewed, it simply cannot be deemed an ‘expert report’ at all, even a deficient one.” 6 The Affirmed. deficient-or-no-report issue was not present in Ogletree, but I noticed it in another then-pending case, Lewis v. Funderburk, filed one week before Ogletree. 7 Justice WILLETT filed a concurring opinion.

5 262 S.W.3d at 324 (Willett, J., concurring). Justice JOHNSON filed a dissenting opinion, in which Justice WAINWRIGHT joined. 6 Id. at 323.

7 Funderburk, 253 S.W.3d at 209 (Willett, J., concurring). Justice WILLETT, concurring. In Funderburk, the Court confronted “an actual sighting of Since 2006 we have circled an issue both recurring and this rare bird, a species that in my view merits extinction, elusive: whether any document, even one that never accuses not conservation.” 8 The “report” in Funderburk was a thank- anyone of committing malpractice, suffices to warrant an you letter from one[*559] doctor to another—a letter that unreviewable thirty-day extension under Section 74.351(c). 1 never once in any manner, way, shape, or form accused Until today, the issue was procedurally (and frustratingly) anyone of malpractice. 9 This thanks-for-your-referral letter unreachable and thus unresolvable. Finally it is squarely was no more a medical-expert report “than a doctor-signed presented, and I am confident today's decision will brighten prescription or Christmas card would be,” I wrote, adding, “If the line between deficient-report cases (where an extension a report is missed, not just amiss, courts are remiss if they is discretionary) and no-report cases (where dismissal is mandatory). do not dismiss.” 10 Alas, the defendant did not raise the “no report” issue, thus foreclosing a merits-based challenge. 11 1 See TEX. CIV. PRAC. & REM.CODE § 74.351(c).

*** 8 Id.

In a trio of concurrences in 2007, 2 2008, 3 and 2009, 4 I 9 The letter is reproduced in its entirety in Chief Justice focused on this nagging question: Is there a legal difference Gray's dissent in the court of appeals. See Lewis v. between filing nothing and filing something that amounts to Funderburk, 191 S.W.3d 756, 762–63 (Tex.App.-Waco nothing? That is, can a filing be so utterly lacking in the 2006) (Gray, C.J., dissenting), rev'd, 253 S.W.3d 204 required statutory elements as to be no report at all, thus (Tex.2008). requiring dismissal? I join today's decision, which I read to 10 Funderburk, 253 S.W.3d at 210–11 (Willett, J., confirm my consistently stated view: If a document bears zero concurring).

resemblance to what the statute envisions—more to the point, if it never asserts that anyone did anything wrong—it cannot 11 Id. at 208 (majority opinion) (“We do not reach the receive an extension. question addressed in the concurring opinions here because it is not raised. As stated in his reply brief, 2 ‘[Dr.] Lewis has made it abundantly clear that he is Ogletree v. Matthews, 262 S.W.3d 316, 323 (Tex.2007) not appealing the trial court's [initial] order (no matter (Willett, J., concurring).

how vehemently he disagrees with it),’ but instead is 3 Lewis v. Funderburk, 253 S.W.3d 204, 210 (Tex.2008) only appealing the order denying his second motion to (Willett, J., concurring). dismiss.”).

Finally came In re Watkins, where a plaintiff merely filed a narrative of treatment, something that omitted every

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12

Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413 statutorily required element and had no apparent relationship malpractice case at all—no mention of a claim or a defendant, 12 much less a claim that “an individual with expertise” indicates to a medical-malpractice case. Like Funderburk, this case also had a procedural wrinkle that kept the marquee “has merit.” 18 “no report” vs. “deficient report” issue out of reach. 13 But the rare-bird sightings, I noticed, were becoming 15 346 S.W.3d 546, 549. more commonplace. And they would proliferate on our 16 Id. at 549. docket, I predicted, absent appellate enforcement of the statute's mandatory-dismissal provision 14 —or alternatively, 17 262 S.W.3d at 321 (“Because a report that implicated this Court's express adoption of a grace-period test that is Dr. Ogletree's conduct was served and the trial court indeed gracious, allowing extensions for most everything. granted an extension, the court of appeals could not reach the merits of the motion to dismiss.”) (emphasis added). 12 279 S.W.3d at 637 (Willett, J., concurring). 18 346 S.W.3d at 549. The narrative in In re Watkins might also fail today's test, as it lacked every required statutory 13 Id. at 634 (majority opinion) (“The separate writings join element, though unlike the referral letter in Funderburk, issue again today on the question whether the item served it at least mentions (twice) the defendant physician's was a deficient report or no report at all. But here it name. does not matter. If no report was served, interlocutory *** appeal was available, so mandamus is unnecessary. If the report was merely deficient, then an interlocutory Based on my understanding of the Court's “minimal appeal was prohibited, and granting mandamus to review standard” 19 —requiring that someone with expertise express it would subvert the Legislature's limit on such review.”) an opinion that the plaintiff has a meritorious malpractice (citations omitted). claim against the defendant—I join the Court's decision. 14 My sense is that such sightings have indeed grown more prevalent, making Chapter 74 defendants perhaps 19 Id. at 557. “identify with the seaside residents of Bodega Bay, besieged by avian attacks,” In re Watkins, 279 S.W.3d at 637 n. 13 (Willett, J., concurring) (citing THE BIRDS Justice JOHNSON, joined by Justice WAINWRIGHT, (Universal Pictures 1963)), or else those Arkansans who dissenting. witnessed the so-called Aflockalypse last New Year's The Court says that a plaintiff who timely files a defective Eve, when thousands of blackbirds and starlings fell expert report is eligible for an extension of time to cure the mysteriously from the skies. report if Under the Court's admittedly “lenient standard,” 15 the [the report] contains a statement document must merely “[contain] a statement of opinion of opinion by an individual with by an individual with expertise indicating that the claim expertise indicating that the claim asserted by the plaintiff against the defendant has merit.” 16 asserted by the plaintiff against the The line is forgiving but bright: The “report” must actually defendant has merit. An individual's allege someone committed malpractice. The genesis of this lack of relevant qualifications and an elemental requirement is found in Ogletree, where the Court opinion's inadequacies are deficiencies first indicated that the purported report must implicate a the plaintiff should be given an provider's conduct. 17 It merits emphasis, however, that opportunity to cure if it is possible to today's standard, benevolent as it is, is not satisfied by do so. any medical-related piece of paper; the bar is low but not subterranean. For example, the “report” in Funderburk would 346 S.W.3d 546, 549. In my view the Court's standard surely fail even today's lax test. The thank-you letter in that does not conform to requirements the Legislature imposed case never mentioned malpractice by anyone,[*560] even in in authorizing an extension to cure a deficient report. I the most implicit or glancing manner. Again, it is not merely respectfully dissent. that the letter omitted every required statutory element. Rather, it never even hinted at having any relationship to a A trial court is statutorily authorized to grant an extension to cure elements of an expert report that are found deficient,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13

Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413 not to cure a report that substantively is not a report, nor to TEX. CIV. PRAC. & REM.CODE § 74.351(r)(5)(A). cure a report from which elements are absent as opposed to Section 74.401 provides specific requirements for an deficient: expert to be qualified to provide the section 74.351 report:

(b) If, as to a defendant physician or health care provider, (a) In a suit involving a health care liability claim an expert report has not been served within the period against a physician for injury to or death of a patient, a specified by Subsection (a), the court, on the motion of the person may qualify as an expert witness on the issue of affected physician or health care provider, shall, subject to whether the physician departed from accepted standards Subsection (c), enter an order that: of medical care only if the person is a physician who:

(1) awards to the affected physician or health care (1) is practicing medicine at the time such testimony is provider reasonable attorney's fees and costs of court given or was practicing medicine at the time the claim incurred by the physician or health care provider; and arose;

(2) dismisses the claim with respect to the physician or (2) has knowledge of accepted standards of medical health care provider, with prejudice to the refiling of the care for the diagnosis, care, or treatment of the illness, claim. injury, or condition involved in the claim; and

(c) If an expert report has not been served within the period (3) is qualified on the basis of training or experience specified by Subsection to offer an expert opinion regarding those accepted standards of medical care.

(a) because elements of the report are found deficient, the court may grant one 30–day extension to the claimant in Id. § 74.401(a). The Court has said that “[a] report order to cure the deficiency. by an unqualified expert will sometimes (though not always) reflect a good-faith effort sufficient to justify a TEX. CIV. PRAC. & REM.CODE § 74.351(b), (c); 1 see In 30–day extension.” In re Buster, 275 S.W.3d 475, 477 re Watkins, 279 S.W.3d 633, 634–35 (Tex.2009) (Johnson, J., (Tex.2008) (per curiam) (citing Leland v. Brandal, 257 concurring) (“The definition [of expert report] requires that S.W.3d 204, 208 (Tex.2008)). The Court has recognized for a document to qualify as a statutory expert report, it must that not every doctor is qualified to render an opinion demonstrate three things: (1) someone with relevant expertise about every aspect of medicine or medical science. In re (‘ “[e]xpert report” means a written report by an expert’), (2) McAllen Med. Ctr., Inc., 275 S.W.3d 458, 463 (Tex.2008); has an opinion (‘that provides a fair summary of the expert's Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996) opinions'), and (3) that the defendant was at fault for failing (“[G]iven the increasingly specialized and technical nature to meet applicable standards of care and thereby harmed the of medicine, there is no validity, if there ever was, to plaintiff....”). Absent an expert with relevant expertise, I do the notion that every licensed medical doctor should be not see[*561] how there can be an expert report under the automatically qualified to testify as an expert on every statute, because the foundation of an expert report is the medical question.”). requirement that the report be by a qualified expert. “Expert” The Court's new test apparently allows a report to qualify for purposes of a report means: as a deficient report even if the report demonstrates none of the three requirements of section 74.401(a). The test requires 1 Further references to the Civil Practice and Remedies only that the person rendering the opinion have some type Code will be by referring to section numbers unless of undefined level of expertise. It abandons the requirements otherwise indicated. that the report show the expert (1) has knowledge of accepted standards of care for the diagnosis, care, or treatment of the [W]ith respect to a person giving opinion testimony illness, injury, or condition involved in the claim; and (2) regarding whether a physician departed from accepted qualifies on the basis of training or experience to offer an standards of medical care, an expert qualified to testify expert opinion regarding those accepted standards of medical under the requirements of Section 74.401.... care. See TEX. CIV. PRAC. & REM.CODE § 74.401(a)(2), (3). Nor does the test require a showing that the expert is practicing medicine or was doing so when the claim arose. See id. § 74.401(a)(1).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14

Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

In Ogletree v. Matthews, we considered a defendant's Dr. Marable's report says nothing about his surgical contention that no statutory expert report had been filed qualifications. The report does not give any facts or because the report was by a radiologist who was not qualified information which would qualify him to opine on the to express an opinion on the standard of care for a urologist. standards of care for the type of surgery performed in this 262 S.W.3d 316, 319 (Tex.2007). The urologist defendant case, and he did not attach a CV to the report. ^[2] The report had performed a urethral catheterization during which the was written on a letterhead showing that he maintains board patient suffered bruising and bladder perforation. Id. at certification in neurology[*562] and psychiatry. In his report 317. We held that the radiologist's report was deficient, he makes it clear that he is basing his opinion on his expertise not absent. Id. at 320. But in Ogletree the radiologist was in neurology, not surgery: “As a board certified neurologist, opining about whether the urologist should have performed my opinion is that Dr. Ducic violated the standards of the catheterization under flouroscopic guidance in order to care, as well as Dr. Scoresby, and as a result [Santillan's] avoid or more timely diagnose the perforation. Id. at 318. In damages are that of a right-sided hemiparesis with possibility that instance, the radiologist was opining about whether the of seizure foci in the future.” The neurological expertise urologist should have involved radiology-related devices and on which Dr. Marable relies does not involve surgery. See techniques (the specialty in which the expert was qualified) WILSON STEGEMAN, MEDICAL TERMS SIMPLIFIED in treating the patient and whether the failure to do so resulted 106 (1976) (noting that neurologists do not perform surgery); in injury. The matter before us is different from Ogletree American Academy of Neurology, Working with Your because there is no apparent closely related connection Doctor, https://patients.aan.com/go/workingwithyourdoctor between the expertise involved in the specialty of neurology (last visited Apr. ^[18], 2011) (“Neurologists do not perform and the expertise involved in knowing how to perform, and surgery.”). Dr. Marable's report does not claim that he now performing, the surgery performed by Drs. Scoresby and performs or has in the past performed surgery, much less Ducic. this particular type of surgery. The report neither claims that he has knowledge of the standard of care for performing In McAllen Medical Center, 275 S.W.3d 458, we considered the surgery nor that he is qualified on the basis of training the validity of a doctor's expert reports in negligent or experience to offer an expert opinion on those standards credentialing suits against the medical center. McAllen of care. See TEX. CIV. PRAC. & REM.CODE 74.401(a) challenged the adequacy of the reports on the basis that (2), (3). The report does not say that he has participated in, the doctor was not qualified to express opinions as to the observed, or even read about how to do “procedures of left credentialing process. Id. at 462. We agreed with McAllen mediomaxillectomy, excision of neoplasm of the maxilla, and held that the reports were inadequate: calvarial bone growth and reconstruction of maxilla and On this record, the plaintiffs have not established Dr. excision of tumor of pterygopalatin structures,” which were Brown's qualifications. “The standard of care for a hospital the surgical procedures performed by Drs. Scoresby and is what an ordinarily prudent hospital[*563] would do Ducic. ^[3] In short, nothing in Dr. Marable's report raises an under the same or similar circumstances.” Nothing in the inference that he is a qualified expert as to this type of surgery, record here shows how Dr. Brown is qualified to address as prescribed by statute, and the report is all that was before this standard. Nor can we infer that she may have some the trial court in regard to his qualifications. knowledge or expertise that is not included in the record.

2 An amended report by Dr. Marable with a CV attached Moreover, “a negligent credentialing claim involves a was filed on the day the defendants' motions to dismiss specialized standard of care” and “the health care industry were heard. The CV was not considered by the trial court, has developed various guidelines to govern a hospital's but it did not show that Dr. Marable had any training or credentialing process.” Dr. Brown's reports contain no expertise in the type of surgery involved here. reference to any of those guidelines, or any indication 3 that she has special knowledge, training, or experience Santillan's attorney represented during oral argument regarding this process. Nor was Dr. Brown qualified that he believed Dr. Marable's amended report contained merely because she is a physician; “given the increasingly statements by Dr. Marable that he had seen surgery of specialized and technical nature of medicine, there is no this type because he had treated patients after they had the surgery. validity, if there ever was, to the notion that every licensed

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15

Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

The Court says that “ ‘there are constitutional limitations upon medical doctor should be automatically qualified to testify the power of courts ... to dismiss an action without affording as an expert on every medical question.”

a party the opportunity for a hearing on the merits of his Id. at 463 (citations omitted). cause.’ ” 346 S.W.3d at 554 (quoting TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991)). I The substance of the issue before us is similar to the issue agree. But the statement does not fit here. First of all, the we decided in McAllen Medical Center. Dr. Marable's report constitutionality of the statute is not challenged. Second, indicates that the defendants violated standards of care for even if it were, the statutory requirement of a timely report the surgery and their negligent activity caused damages to by a qualified expert did not spring upon Santillan without Santillan. But Dr. Marable's report does not show he was warning. The requirement was in place before the surgery qualified under the statute to give such an expert opinion, took place in January 2006, while suit was not filed against the nor did his opinion about the surgeons' decisions and actions defendant doctors and Tarrant County Hospital until January during surgery involve his specialty except to the extent a 2008. Santillan had time to find a qualified expert to provide physician with his specialty would have been involved in the report required to show his claim had merit, if he could post-surgical care and possibly a decision to reoperate. find such an expert.

If Dr. Marable's report had in some manner demonstrated I would hold that failure to timely serve a report by an expert that he was qualified to render an opinion about the qualified under the statute is not merely a deficiency in an standard of care for the surgery involved, then I might element of the report, it is a deficiency going to the question of agree that his conclusory statements about the defendants whether the report is competent and is entitled to be given any having negligently violated applicable standards of care weight. And I would hold that it is not an expert report and the and those negligent activities having caused damages were filing of such a report supports inferences that a[*564] proper sufficient to support an extension of time. But the report report by a qualified expert was not available, the claim lacks sets out his opinion as a neurologist, not a physician with merit, and the claim should be dismissed. surgical expertise. The Legislature did not intend that an expert report could be by a doctor with no demonstrated or I would reverse the judgment of the court of appeals and inferable experience and training in a practice area who reads dismiss the case. See Badiga v. Lopez, 274 S.W.3d 681, 684– medical records and writes a report containing the simplistic 85 (Tex.2009). indictments in the report here: the defendants negligently lacerated the brain and further surgery was required. See TEX. CIV. PRAC. & REM.CODE § 74.401(a). All Citations

346 S.W.3d 546, 54 Tex. Sup. Ct. J. 1413

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16

Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

The following summary of the plaintiff's hospital visit, during which he suffered a stroke, is taken from Dr. Nicolaos 2013 WL 1694869 Only the Westlaw citation is currently available. Madias's August 8, 2011 expert report 1 :

SEE TX R RAP RULE 47.2 FOR 1 For purposes of our review of the adequacy of a medical DESIGNATION AND SIGNING OF OPINIONS. expert report under Chapter 74, we take the allegations in the report as true.Marino v. Wilkins, ––– S.W.3d ––––, MEMORANDUM OPINION –––– n. 1, 2012 WL 749997, at[*17] n. 1 (Tex.App.- Court of Appeals of Texas, Houston [1st Dist.] Mar, 8, 2012, pet. denied). Houston (1st Dist.).

On November 14, 2008, 53 year-old plaintiff/appellee Glenn Cyril B. TAWA, M.D., Houston Gentry (Gentry) visited his primary physician, Dr. Keller, Interventional Cardiology, P.A., and complaining of fatigue and shortness of breath. Keller Angela Rowan, R.N. F.N.P. -C, Appellants determined that he had atrial fibrillation with a rapid v. ventricular rate. Keller sent Gentry to the Emergency Room at North Cypress Medical Center. Upon admittance, he was seen Glenn P. GENTRY and Patricia Gentry, Appellees.

by defendant/appellant Dr. Cyril B. Tawa, M.D., the attending No. 01–12–00407–CV. | April 18, 2013. physician, and defendant/appellant Angela Rowan, Tawa's nurse practitioner. Gentry's primary complaint was heart On Appeal from the 333rd District Court, Harris County, palpitations and he was “found to have atrial fibrillation with Texas, Trial Court Case No.2011–05219. a ventricular rate of 130 beats per minute.”In the Emergency Room, Gentry was given “Cardizem bolus followed by a Attorneys and Law Firms Cardizem drip to control the ventricular rate.” Gordon M. Carver III, for Houston Interventional Cardiology, Upon admission, Gentry was taken off some of his regular PA, Cyril B. Tawa, M.D., Angela Rowan.

medication and others were prescribed. Specifically, he was Matias J. Adrogue, for Patricia Gentry. “prescribed to discontinue Lovenox and Lisinopril; to take Toprol XL, Clonidine, started [on] a Heparin drip and Panel consists of Chief Justice RADACK and Justices Coumadin (warfarin).” The following three days, November HIGLEY and BROWN. 15, 16, and 17, Tawa ordered Coumadin be administered.

Several medical tests were performed on Gentry's heart MEMORANDUM OPINION and kidneys during his hospital stay. According to the records, Mr. Gentry had “elevated creatinine.” Tawa then SHERRY RADACK, Chief Justice. consulted with Dr. Lal, who determined that a kidney biopsy was necessary. “Medications that promote reversal *1 This is an interlocutory appeal from the denial of of Coumadin effects as well as infusion of coagulation facts appellants' motions to dismiss under Chapter 74 of the were prescribed on November 18, 2008, including vitamin K Texas Civil Practice and Remedies Code. We reverse the iv and FFP (fresh frozen plasma).”“Lal wrote in a Progress trial court's order denying appellants Angela Rowan's and Note on November 18 that a plan was made for a kidney Houston Interventional Cardiology's motion to dismiss (as it biopsy (Dr. Tawa, Dr. Keller, Dr. Morello, patient); FFP, vit relates to care provided by Rowan) and remand to the trial K iv; hold Coumadin and heparin.”

court for assessment of attorneys' fees and costs. We affirm the trial court's order denying appellants Cyril Tawa's and The kidney biopsy was performed on November 19, 2008, Houston Interventional Cardiology's motion to dismiss (as it and later that day Gentry's records indicate he had a “CVA relates to care provided by Tawa).

(cerebrovascular accident ) believed to be of ischemic origin with left hemiparesis, aphasia, lethargy.”“Impression and plan included: atrial fibrillation, embolism, not a candidate BACKGROUND for TPA because of recent kidney biopsy, MRI, and transfer to ICU,” where he “received a ‘heparin drip.” His

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869 stroke“resulted in aphasia and weakness of left extremities.”A Section 74.351 of the Texas Civil Practice and Remedies neurology consultation that same night indicated that “Gentry Code requires the trial court perform a ‘gate-keeper’ function, had developed hemiplegia, probably cardio embolic and this to prevent medical negligence causes of actions from was discussed with Dr. Lal, Dr. Tawa, and his family, and proceeding unless the claimant has made a good-faith effort heparin infusion was prescribed.” to demonstrate that at least one expert believes that a breach of the applicable standard of care caused the claimed injury. *2 The medical records also describe the results of CT scans TTHR, L.P. v. Guyden, 326 S.W .3d 316, 319 (Tex.App.- of his heart and brain, and later ultrasound images of his Houston [1st Dist.] 2010, no pet.)(citing TEX. CIV. PRAC. & carotid and vertebral arteries.” At the time of his discharge REM.CODE ANN. § 74.351; Murphy v. Russell, 167 S.W.3d from the hospital on December 1, 2008, “Gentry had left- 835, 838 (Tex.2005)).“A report need not marshal all of the sided weakness, speech impairment, sitting up in a chair and plaintiff's proof but it must include the expert's opinions in normal sinus rhythm.” on the three statutory elements: standard of care, breach, and causation.”Id.; see Am. Transitional Care Centers v. Gentry and his wife, Patricia Gentry, sued Dr. Tawa, Dr. Palacios, 46 S.W.3d at 873, 880 (Tex.2001); Spitzer v. Berry, Lal, Rowan, and Houston Intervention Cardiology, P.A. 247 S.W.3d 747, 750 (Tex.App.-Tyler 2008, pet. denied) On June 14, 2011, pursuant to Chapter 74 of the Texas (quoting Palacios, 46 S.W.3d at 880) (stating “fair summary” Civil Practice and Remedies Code, the Gentrys served the is “something less than a full statement” of applicable defendants with an expert report and curriculum vitae (CV) standard of care, how it was breached, and how that breach of Dr. Nicolaos E. Madias, M.D. Defendants Tawa, Rowan, caused injury). and Houston Intervention Cardiology filed objections and motions to dismiss. The trial court overruled the objections, To constitute a good faith effort, the report must provide but granted the Gentrys 30 days to cure any deficiencies in enough information to fulfill two purposes: (1) inform the Madias's report. The Gentrys timely filed an Amended Expert defendant of the specific conduct that the plaintiff has called Report and CV. Tawa, Rowan, and Houston Intervention into question; and (2) provide a basis for the trial court to Cardiology filed objections again, as well as a motion conclude that the claims have merit. Palacios, 46 S.W.3d at to dismiss and request for attorneys' fees. The trial court 879. A report that merely states the expert's conclusions as denied defendants' motion, and Tawa, Rowan, and Houston to the standard of care, breach, and causation does not fulfill Intervention Cardiology timely brought this interlocutory, these two purposes. Id. The expert must explain the basis for accelerated appeal. his statements and link his conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). The trial court may not draw any inferences, but must rely exclusively ISSUES ON APPEAL on the information contained within the report's four corners. Appellants argue that Madias's amended report does not See TTHR, 326 S.W.3d at 319. In addition to setting forth the represent a good faith effort to comply with section 74.351(r) requisite criteria, a Chapter 74 report must also be authored (6) of the Texas Civil Practice and Remedies Code. by a qualified “expert.” TEX. CIV. PRAC. & REM.CODE Accordingly, appellants argue that the trial court abused its ANN. § 74.351(r)(6). discretion by overruling their objections to Madias's amended report, and by denying their motions to dismiss and refusing *3 We review a trial court's decision on a motion to dismiss to award attorneys' fees. Appellants seek reversal of the a case for failure to comply with section 74.351 for an abuse trial court's orders, dismissal with prejudice of the Gentrys' of discretion.Palacios, 46 S.W.3d at 877; Tex. Civ. Prac. & claims against appellants, and a remand to the trial court with Rem.Code Ann. § 74.351(Vernon Supp.2009). Although we instructions to award to appellants reasonable attorneys' fees defer to the trial court's factual determinations, we review and costs. questions of law de novo. Rittmer v. Garza, 65 S.W.3d 718, 722 (Tex.App.-Houston [14th Dist.] 2001, no pet.). To the extent that resolution of the issue before the trial court requires interpretation of the statute itself, we apply a de novo APPLICABLE LAW standard. Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.- Houston [14th Dist.] 2004, no pet.).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

with treating patients with fluctuating mental status gives him expertise regarding a hospital's ‘administrative decision’ about the circumstances under which a hospital can disregard DR. TAWA a doctor's discharge order.”Id. at 536.It thus held that the In appellants' first issue, they argue that the trial court abused expert's report did not demonstrate that he was qualified its discretion in failing to find Madias's report deficient as to opine on the hospital's standard of care in making it relates to Tawa (and to the vicarious liability of Houston administrative decisions: Interventional Cardiology for Tawa's care). Specifically, *4 [The expert's] report and curriculum vitae explain Tawa argues that Madias's report is deficient because (1) he that he has active staff privileges at Reston Hospital, is “not qualified to render an opinion regarding the applicable where he sits on the credentials committee, and that he is standard of care for Dr. Tawa,” (2) it “fails to specify the on the utilization review subcommittee for the neurology applicable standard of care,” (3) it “fails to adequately set section of Fairfax Hospital. As [plaintiff] argued in his forth the manner in which Tawa allegedly breached the response to the motion to dismiss, “this case concerns the standard of care,” and (4) it “fails to discuss the causal Defendant Hospital's decision to abandon [complainant], relationship between the breach and Mr. Gentry's” stroke.

not whether the nursing staff followed protocol.”The report does not state that [the expert] is familiar with A. Qualification hospital administration or the standards to be applied to Tawa contends that Madias's report “seek[s] to hold Dr. Tawa implementing an attending physician's discharge order. strictly liable for the conduct of all, solely by virtue of the The fact that [the expert] is on staff at a hospital and serves fact that Dr. Tawa signed Mr. Gentry's admitting order.”This, on that hospital's credentials committee does not establish according to Tawa, “invents a dangerous new brand of that he possesses specialized knowledge of the protocols, vicarious liability, casting a net over the ‘attending physician’ policies, or procedures a hospital of ordinary prudence and any and all health care providers that subsequently come would have had in place in determining when a facility into contact with a patient.”He notes that not every licensed should disregard a discharge order. See Reed v. Granbury doctor is automatically qualified to testify on every medical Hosp. Corp., 117 S.W.3d 404, 409 (Tex.App.-Fort Worth question, Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996), 2003, no pet.). and that, to offer his opinion on the standard of care applicable [The expert's] report and curriculum vitae do not explain to attending physicians, Madias's expertise must be evident how [his] committee assignments and experience on staff from the four corners of his report and his CV. Palacious, 46 at Reston Hospital make him familiar with the standards S.W.3d at 878.

applied by hospitals under these circumstances. Thus, the trial court abused its discretion in overruling [defendant's] Tawa relies on Christus Health Southeast Texas v. Broussard, objections to [the expert's] report.

267 S.W.3d 531, 536–37 (Tex.App.-Beaumont 2008, no pet.), a case in which a neurologist expert opined on the 267 S.W.3d at 536. standard of care applicable to a hospital's administrative decisions. Specifically, the expert—who had experience According to Tawa, “Dr. Madias' opinion regarding Dr. treating patients that, like the complainant, had “a history of Tawa's liability is not based upon the medical care Mr. fluctuating mental capacities”—opined about the hospital's Gentry received from Dr. Tawa.”Rather, he asserts, “Madias' decisions related to the complainant's discharge from long- conclusion regarding liability is based upon whether Dr. term care. Id. The complainant was intubated and being Tawa should have made the administrative decision to treated for “pneumonia and acute respiratory deficiency.” prevent implementation of another physician's order.”Thus, Id. at 534.While the complainant was waiting to be Tawa contends that, like the report at issue in Broussard, discharged pursuant to her doctor's orders, plaintiff alleged Madias's report does not show he is qualified to opinion about that the defendant hospital removed the complainant's finger “customs, policies and procedures.” pulse oximeter, then left complainant unrestrained and unsupervised. Id. She dislodged her breathing tube and The Gentrys respond that Tawa's argument “represents either suffered a hypoxic brain injury.Id. The court noted that the a mischaracterization or a misunderstanding of the opinion expert's report and CV did not “explain how his experience offered by Dr. Madias.”They argue that nowhere in Madias's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869 report does he opine that Tawa as the attending physician is to testify.”Rittger v. Danos, 332 S.W.3d 550, 559 (Tex.App.- strictly liable for other's care; nor does he suggest that Tawa Houston [1st Dist.] 2009, no pet.). should have “overruled” the orders of another physician. Instead, Madias notes that as the attending physician, Tawa is responsible for managing the overall care of the patient, 2. Analysis which might include attempting to prevent performing Madias is board certified in Internal Medicine, licensed procedures that “pose a great risk to the patient given the to practice in Massachusetts, and is a professor at Tuffs totality of that patient's medical circumstances.”The Gentrys University School of Medicine. His report states that he also point out that Lal's progress notes “indicate that Dr. Tawa has reviewed Gentry's medical records and is “qualified to was a party to the decision to stop Mr. Gentry's antithrombotic evaluate and render an opinion ... based on the following”: treatment and administer procoagulant treatment,” such that (1) I have the training and experience in the management he may have “endorsed or approved these decisions.” Finally, of patients with atrial fibrillation; in the use of the Gentrys contend that it is apparent from Madias's report anticoagulation therapy in these patients; in the risk of and CV that he familiar with the standard of care regarding embolic stroke in the absence of anticoagulation therapy; attending physicians similarly situated with Tawa.

in the indications and contraindications of a kidney biopsy; and in the diagnosis and management of kidney 1. Applicable Law disease. *5 Chapter 74 sets forth general criteria for qualifying an (2) I have been actively practicing medicine and caring for expert physician:

patients like Mr. Gentry at the time he was diagnosed (a) In a suit involving a health care liability claim against with atrial fibrillation and thereafter including the time a physician for injury to or death of a patient, a person that the claim was filed. In addition, I have been actively may qualify as an expert witness on the issue of whether involved in the diagnosis and management of kidney the physician departed from accepted standards of medical disease during the same period. care only if the person is a physician who:

(3) I have knowledge of the standard of care associated with (1) is practicing medicine at the time such testimony is the diagnosis and treatment of the illness and injury that given or was practicing medicine at the time the claim Mr. Gentry suffered, including his atrial fibrillation, the arose; need for anticoagulation, the risks of embolic stroke, and management of kidney diseases.

(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, (4) As a doctor of Internal Medicine who has or condition involved in the claim; and treated many patients with atrial fibrillation and uncontrolled hypertension, I have knowledge of the risks (3) is qualified on the basis of training or experience to involved when such patients' antithrombotic treatment offer an expert opinion regarding those accepted standards is discontinued. The consequences of discontinuation of medical care. of antithrombotic therapy and the causes of cardiac embolism are well known within the specialty of Internal TEX. CIV. PRAC. & REM.CODE § 74.401(a). Medicine. Because of this, I am qualified to offer opinions on the causation of Mr. Gentry's injuries. The relevant issue is not “the physician's area of practice but the stated familiarity with the issues involved in the *6 To determine if Madias is qualified to opine on the claim before the court.”Pediatric Med. Group, Inc. v. standard of care applicable to Tawa, we look to “the medical Robinson, 352 S.W.3d 879, 884 (Tex.App.-Dallas 2011, no condition involved in the claim and ... the expert's familiarity pet.).“Where a particular subject of inquiry is common to and experience with it.”Grandbury Minor Emergency. Clinic and equally developed in all fields of practice, and the v. Thiel, 296 S.W.3d 261, 267 (Tex.App.-Fort Worth 2009, prospective medical expert witness has practical knowledge no pet.). of what is usually and customarily done by a practitioner under circumstances similar to those with confronted the Tawa's argument that Madias is not qualified to render an practitioner charged with malpractice, the witness is qualified opinion rests primarily on his assertion that “Dr. Madias'

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869 opinion regarding Dr. Tawa's liability is not based upon the Rowan NP–C, the expected management to be implemented medical care Mr. Gentry received from Dr. Tawa,” but instead by competent and responsible professionals?” whether “Tawa should have made the administrative decision to prevent implementation of another physician's order.”From *7 Unfortunately, Mr. Gentry's this, Tawa argues that Madias has not shown himself qualified health care providers decided soon to testify about such “administrative” decisions. after his admission, and despite the persistence of atrial fibrillation, to stop We disagree with Tawa's narrow characterization of Madias's the antithrombotic therapy in order opinion. Madias opines that Gentry's stroke was most to address by means of a kidney likely caused by “the discontinuation of Coumadin and biopsy the possible cause of the administration of FFP and vitamin K.” He opined that Tawa's patient's reduced renal function; this standard of care encompassed both his role as attending problem was unrelated to the patient's physician to be “responsible for the entire care delivered symptoms. to the patient by all healthcare providers,” and his “role of internist caring for the atrial fibrillation and the management Madias's report states that he has experience treating and of this condition.”Madias opined that a “patient with atrial managing patients similarly situated with Gentry, i.e., those fibrillation of uncertain time as to the initiation of the diagnosed with atrial fibrillation, and that he has “knowledge arrhythmia and on Coumadin therapy should not discontinue of the standard of care associated with the diagnosis and all antithrombotic therapy unless clots in the atria are absent treatment of the illness and injury that Mr. Gentry suffered, or active bleeding is present.”He also states, with regard to including his atrial fibrillation, the need for anticoagulation, Tawa, that “the standard of care requires an internist to know the risks of embolic strike, and management of kidney that administration of fresh frozen plasma and vitamin K to disease.”He further states that in his Internal Medicine reverse the anticoagulation caused by Coumadin therapy is practice, he has “treated many patients with atrial fibrillation very risky in a patient like Mr. Gentry since discontinuation of and uncontrolled hypertension,” and that he has “knowledge antithrombotic therapy may help to trigger the development of the risks involved when such patient's antithrombotic of more clots in the atria.” treatment is discontinued.”

According to the medical record summary contained in Madias's report further explains that the “consequences of Madias's report, after admitting Gentry to the hospital, Tawa discontinuation of antithrombotic therapy and the causes prescribed, among other things, Coumadin and Heparin to of cardiac embolism are well known within the specialty address his atrial fibrillation. “Lal wrote in a Progress Note of Internal Medicine,” and that “[a]ll of the concepts on November 18 that a plan was made for a kidney biopsy and opinions that I present are completely in the domain (Dr. Tawa, Dr. Keller, Dr. Morello, patient); FFP. Vit K iv.; and expected knowledge of an internist without additional hold Coumadin and heparin.”Tawa argues that this Progress training in cardiology or any other subspecialty.”Finally, he Note is not sufficient to suggest that he had any involvement notes that the “standard of care that apply to a subspecialist in in the medical decision to discontinue the medication that Cardiology or Nephrology managing Mr. Gentry must satisfy he had previously prescribed, and he argues that “the or even exceed those that apply to a specialist in Internal Amended Report does not state or even suggest that Dr. Tawa Medicine. That is, the standard of care applicable to internist participated in the decision to discontinue Coumadin therapy that do not have additional subspecialties such as Cardiology and administer vitamin K and fresh frozen plasma.”A fair or Nephrology.” reading of Lal's Progress Note is that Dr. Tawa was involved or, at a minimum, acquiesced in a treatment that called for “Where a particular subject of inquiry is common to an order discontinuing medication that Tawa had prescribed. and equally developed in all fields of practice, and the And, contrary to Tawa's argument that Madias does not prospective medical expert witness has practical knowledge suggest elsewhere in his report that Tawa was involved in this of what is usually and customarily done by a practitioner decision, Madias's report further attributes these decisions to under circumstances similar to those which confronted Tawa in a section entitled “Was the treatment that Mr. Gentry the practitioner charged with malpractice, the witness is received after his admission on November 14, 2008 by his qualified to testify.”Rittger, 332 S.W.3d at 558 (holding that health care providers including Dr. Tawa, Dr. Lai, and Angela neurologist/ professor of medicine was qualified to opine

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869 on the standard of care in case against emergency room (Tex.App.-Dallas 2007, pet. denied) for the proposition that physician who failed to diagnose stroke in pregnant patient, Madias's failure to include specific information about the time explaining that the fact that the patient “was pregnant when frame in which Tawa was “required to intervene” renders his she experienced her stroke or that she presented herself in articulation of the standard of care fatally deficient. Finally, a emergency room setting does not require that [the expert] Tawa argues that the “report impermissibly infers that the be a an obstetrician or emergency room physician,” because standards of care applicable to Dr. Lal also apply to Dr. he “is shown to be sufficiently competent and qualified to Tawa.” testify as to the care of patients with stoke as a complication of pregnancy-related toxemia”). When, according to the The Gentrys respond that a physician can be liable for expert's report, the relevant standard of care is basic and not negligence in Texas based on a number of different acts or limited to any particular specialty, an expert is qualified if omissions, including choosing an inappropriate procedure, “actively participating in rendering medical care ‘relevant to abandoning a patient, not obtaining informed consent, and the claim,’ which can be demonstrated by a report showing not monitoring a patient's condition. Thus, they argue, “a the “injury involved was of the type [the expert] treated physician can be held liable for omissions-an affirmative in his practice.”Padilla v. Loweree, 354 S.W.3d 856, 864 action is not required in every case.”Additionally, they note (Tex.App.-El Paso 2011, pet. denied) (holding that orthopedic that even the authority Tawa cites acknowledges that a full surgeon was qualified to opine on standard of care against statement of the standard of care is not required, Kingwood gynecological surgeon because subject-matter of claimi.e., Pines Hosp., 362 S.W.3d at 748; all that is required is a positioning and padding of patients' extremities-is common statement sufficient to put the defendants on notice of the to types of surgeries expert performs). nature of the claims against them, which Madias's report does.

*8 We disagree with Tawa that Madias's report and opinions The Gentrys also contend that the Kingwood Pines case are analogous to the expert's report and opinions “about primarily relied upon by Tawa is distinguishable on its facts the administrative decisions of the Defendant Hospital” that because it involved a conclusory articulation of a nonmedical the court in Brossard held the expert was not qualified standard of care not present in this case. The Gentrys argue by experience or knowledge to opine about. 267 S.W.3d that Kettle—the case Tawa cites for the proposition that at 536. Rather, Madias's report and CV demonstrate that Madias's report lacks requisite specificity about the timeframe he has experience treating patients similarly situated with for intervention—is likewise distinguishable. In that case, the Gentry, and that the standards about which he opines are court found the word “promptly” to be too ambiguous to generally and well-known within his field of expertise. Tawa articulate the standard of care that turned on when a procedure has not established that the trial court abused its discretion in should have been performed to prevent a patient's death. finding Madias qualified to render an opinion regarding the According to the Gentrys, this case does not involve the applicable standard of care for Tawa. same ambiguity concerns, given that the only possible time to intervene in this case would have been before cessation of antithrombotic therapy and the subsequent administration B. Adequacy of Report of vitamin K and fresh frozen plasma. Finally, the Gentrys assert that Tawa's contention that Madias's report imputes 1. Standard of Care Lal's standard of care to Tawa is simply not supported by the Tawa next argues that Madias's report “fails to specify actual contents of the Amended Report.

an adequate standard of care for Dr. Tawa.”Specifically, Tawa asserts that the “standard of care articulated in the *9 Madias's report contains the following articulation of the report is ambiguous and conclusory because the report standard of care as it relates to Tawa:

provides no specific information about what Dr. Tawa should have done differently to meet the expected standard.”Tawa The accepted standard of medical care applicable to Dr. cites Kingwood Pines Hospital v. Gomez, 362 S.W.3d Tawa relates to this dual role of attending physician and 740, 743 (Tex.App.-Houston [14th Dist.] 2011, no pet.) that of internist caring for the patient. As the attending for the proposition that Madias's report fails to include physician in the admission to the hospital of Mr. Gentry, specific enough information about what an ordinarily prudent Dr. Tawa is responsible for the entire care delivered to healthcare provider would have done, and Kettle v. Baylor the patient by all healthcare providers, including Dr. Lal Medical Center at Garland, 232 S.W.3d 832, 838–39 and Angela Rowan. Thus, Dr. Tawa must oversee the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869 care delivered by the other providers and ensure that prevent brain damage” was sufficient articulation of standard it is within the standard of care. Failure to fulfill this of review, in case alleging that physician was negligent in task leads to substandard care. Dr. Tawa also treated failing to immediately prescribe anticonvulsants). Mr. Gentry in the role of internist caring for the atrial fibrillation and the management of this condition. A[*10] The cases relied upon by Tawa are inapposite. In patient with atrial fibrillation of uncertain time as to the Kingwood Pines, a minor who was being evaluated for intuition of the arrhythmia and on Coumadin therapy a psychiatric condition stemming from sexual abuse sued should not discontinue all antithrombotic therapy unless her doctor and hospital after she was sexually molested by clots in the atria are absent or active bleeding is present. another patient while in the hospital. 362 S.W.3d at 743– The standard of care requires an internist to know 44. The court noted that her expert's report contained only that administration of fresh frozen plasma and vitamin conclusory statements “regarding the provision of a secure K to reverse the anticoagulation caused by Coumadin environment, the supervision of patients, and the prevention therapy is very risky in a patient like Mr. Gentry since of harm to patients,” without “indicat[ing] what an ordinarily discontinuation of antithrombotic therapy may help to prudent health care provider would do under the same or trigger the development of more clots in the atria. similar circumstances.”Id. at 749.The court thus held that the articulation of the standard of care was insufficient as the It is important to recognize that the accepted standards of expert merely stated “that appellants did not provide a safe care for the diagnosis and management of the illness of and secure environment for [the plaintiff], but do not specify Mr. Gentry are entirely dependent on his condition as a how this should have been accomplished.”Id. Given that patient and are largely independent of the subspecialty (e.g. Medias's report does indicate what course of action was called Cardiology or Nephrology) of the providers. Mr. Gentry for, it does not lack specificity as the report in Kingwood had a medical condition typically managed by internists Pines did. (specialty in Internal Medicine), and both Dr. Lal and Dr. Tawa were board certified in Internal Medicine. Kettle, the other case cited by Tawa, is likewise distinguishable. In that case, the court affirmed the trial The standard of care is defined by what an ordinarily prudent court's dismissal of a plaintiff's claim for failure to serve an health care provider or physician would have done under the adequate expert report as to plaintiffs claims against certain same or similar circumstances.Palacios, 46 S.W.3d at 880; physicians. 232 S.W.3d at 638–39. Among other things, the Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 222 court concluded that the expert's articulation of the standard (Tex.App.-Houston [1st Dist.] 2003, pet. denied). Identifying of care was vague in that it did not specify what action should the standard of care is critical: whether a defendant breached have been taken when: his or her duty to a patient cannot be determined absent specific information about what the defendant should have Cohen's opinion that all the physician- done differently. Palacios, 46 S.W.3d at 880. While a “fair defendants collectively shared the summary” is something less than a full statement of the same duty to diagnose and treat applicable standard of care and how it was breached, even a Kettle's condition “promptly” or fair summary must set out what care was expected, but not “earlier” is also too vague and general given. Id. to satisfy Palacios.It could be stated that every physician has a general Madias's report adequately set forth the standard of care. It duty to diagnose or treat medical states that, in managing atrial fibrillation such as Gentry's, conditions timely but that truism does antithrombotic therapy should not be discontinued unless not inform the physician-defendants certain conditions are present. This is sufficient to put what the standard specifically required Tawa on notice of the “specific conduct” that the Gentrys them to do. It is conclusory. have called into question, and what he should have done differently. Palacios, 46 S.W.3d at 879;e.g., Menefee v. Id. This analysis is simply not relevant to the Gentrys' claims, Ohman, 323 S.W.3d 509, 519 (Tex.App.-Fort Worth, 2010, as it is clear when each action was taken that Madias's views no pet.)(expert's statement that defendant-physician “owed as a breach of the standard of care, i.e., discontinuation of the patient in an acute care setting the duty to immediate antithrombotic therapy and administration of fresh frozen and sufficient medical response to her condition in order to plasma and vitamin K.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

management of Johnson utilizing a We find the facts presented here to be more analogous combination of warfarin and aspirin. to Springer v. Johnson, 280 S.W.3d 322, 334 (Tex.App.- Amarillo 2008, no pet.). In Springer, the plaintiff was[*11] Id. at 331–32.The Springer court rejected the admitted to the hospital for cardiac surgery and, prior defendants' reliance on Kettle for the proposition that the to that surgery, her attending physicians discontinued her standard of care was not sufficiently articulated. Id. at anticoagulant therapy. 280 S.W .3d at 325. Three days 333.The court pointed out that the report at issue “states later, she was discharged without receiving a prescription or the standard of care, the clinical indicators that should have instructions to resume her anticoagulant therapy. Id. She then prompted treatment (patient with newly implanted aortic suffered a stroke. Id. Similar to Madias's report, the expert mechanical prosthesis and history of atrial fibrillation), and in Springer opined that she should have been prescribed the treatment that should have been administered (warfarin anticoagulation medication, and further that each doctor had therapy with a prescribed low dose aspirin) to satisfy the a duty to coordinate her care to ensure that she received the duty of care.”Id. Here, Madias likewise states the clinical proper medication, given the risk indicators: indicators (atrial fibrillation of uncertain time) and the treatment that should have been administered (continued [The] expert report indicates [plaintiff] antithrombotic therapy). suffered from paroxysmal atrial fibrillation, an abnormal heart rhythm Finally, we agree with the Gentrys that Tawa's assertion that alternating between a normal heart Madias's report does not differentiate between the standards rhythm, and she underwent a of care applicable to Tawa and Lal is not supported by combined coronary bypass graft and the contents of the actual report. While Madias states that aortic valve replacement while at the standards applicable to both Tawa and Lal are known Lubbock Heart Hospital. He opines and applicable to internists generally without regard to their that these two facts are clinical additional specialties, his report clearly articulates a separate indicators establishing a compelling standard for both Tawa and Lal individually, and then states and absolute need for anticoagulation that they had an obligation to coordinate their treatment of therapy using warfarin because Gentry. (1) an aortic valve replacement significantly increased her risk of The trial court did not abuse its discretion in determining thromboembolism, i.e., clot formation that Madias's report adequately articulated a standard of care in a blood vessel that breaks loose related to Tawa. and is carried by the blood stream until it eventually plugs another blood vessel, and (2) her paroxysmal 2. Causation atrial fibrillation added to that risk. Tawa next argues that Madias's report “fails entirely to [The expert] further opines that discuss a causal relationship between Dr. Tawa's conduct [plaintiff] should have been prescribed and Mr. Gentry's embolic CVA.”Specifically, he argues that warfarin and aspirin. He states that “the report does not state or even suggest that Mr. Gentry Springer, [plaintiff]'s cardiac surgeon, would not have suffered a stroke if he had remained on and Rizzo and Solis, her attending antithrombotic therapy.”Tawa cites several cases for the cardiologists, were under a duty to proposition that a report that only sets forth causation in a coordinate an appropriate plan for conclusory fashion is not sufficient. Tenet Hosp. LLC v. Love, their patient's care which would have 347 S.W.3d 743, 755 (Tex.App.-El Paso 2011, no pet.)(expert included coordinating care between opinion that if defendant hospital “had a pulmonologist themselves as well as employees and or critical care specialist on call and available to see and agents of Lubbock Heart Hospital. He treat this patient or had transferred this patient before her further opines they were also under condition worsened, [patient] would more likely than not a duty to supervise anticoagulation be alive today” was impermissibly conclusory); Costello v.

Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex.App.-San Antonio 2004, no pet.)(expert's mere assertion

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869 that patient would have survived was conclusory when report proximately caused of Gentry's stroke, and (4) why a kidney did not explain causal relationship between patient's death and biopsy was not indicated, given Gentry's symptoms. Contrary alleged omissions by hospital, including whether treatment to Tawa's assertions, Madias's report clearly states his opinion would have or could have been effective). that the discontinuation of Coumadin and infusion of vitamin K and fresh frozen plasma was the most likely cause of The Gentrys contend that Tawa's argument does not represent Gentry's stroke. The cases Tawa cites are inapposite because a fair reading of Madias's report. They assert that “when one unlike the conclusory reports in those cases, Madias's report views the report in total, it is clear that causation of Mr. does “explain the basis of the expert's statements regarding Gentry's injuries is sufficiently addressed and connects the causation and link his conclusions to the facts.”Love, 347 actions and omissions of Dr. Tawa to those injuries.” S.W.3d at 754.

Madias's report states that the care Gentry received at North The trial court did not abuse its discretion in determining that Cypress Medical Center by Tawa, Rowan, and Lal was Madias's report adequately articulated a causal link between “below the standard of ordinary care, and that it was a Tawa's care and Gentry's stroke. Because we have concluded proximate cause of his cerebrovascular accident (embolic that Madias possessed the required qualifications to prepare stroke) that resulted in hemiplegia with permanent and severe an expert report opining on Tawa's care, and because we have neurologic disability.”His report then goes on to explain the concluded Madias's report meets the statutory requirements, underlying medical basis for his opinion: we overrule appellants' first issue complaining that the trial court abused its discretion in failing to grant Tawa's motion[*12] The cause of the CVA was to dismiss. acute cerebral ischemia with brain infarction within the right side of the brain that resulted from embolism of blood clots that originated in the left ROWAN cardiac chambers (i.e., left atrium).

In appellants' second issue, they argue that the trial court The consulting neurologist, the CT abused its discretion in failing to find Madias's report head, the Brain MRI, all support that deficient as it relates to Rowan (and to the vicarious liability cardiac embolism was the cause of the of Houston Interventional Cardiology for Rowan's care). patient's CVA. The relative normalcy Specifically, Rowan argues that Madias's report is deficient of the Duplex carotid evaluation is because (1) he is “not qualified to render an opinion regarding also consistent with embolism as the the standard of care applicable to nurse practitioners,” (2) it basis for the CVA. Because patients “fails to specify a standard of care applicable to Ms. Rowan,” with atrial fibrillation are at a much and (3) “fails entirely to dismiss the causal relationship higher risk for embolic stroke, it between Ms. Rowan's alleged breach and Mr. Gentry's is important for them to receive embolic CVA.”

antithrombotic therapy unless there is active bleeding or the absence of clots has been confirmed. In this case, A. Qualification the discontinuation of Coumadin and Rowan argues that Madias is not qualified to testify on the administration of FFP and vitamin standard of care for a nurse practitioner. She relies on HB K was the most likely cause of the Properties L.P. v. Cox, No, 02–09–00111–CR, 2009 WL formation of clots in Mr. Gentry's atria 3337190 (Tex.App.-Fort Worth Oct. ^[5], 2009, pet. denied) and his subsequent CVA. (mem.op.), which held that a doctor board certified in internal medicine was not qualified to render an opinion on the Madias's report contains additional information about (1) standard of care applicable to nurses. In that case, although the source of Gentry's blood clots leading to his CVA, the expert's CV reflected experience and expertise in internal (2) the substantial risk and usual course of treatment for medicine and as a medical administrator, nothing in his report patients with atrial fibrillation associated with substantial or CV demonstrated familiarity with the acceptable standard hypertension and left atrial enlargement, (3) why the actions of care for nurses. HB Props. L.P., 2009 WL 3337190, at of each defendant healthcare provider were negligent and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

*4 (holding trial court abused its discretion in failing to claim, or that he has ever worked grant motion to dismiss because “[t]hough [expert] is not with or supervised the specific types automatically disqualified from giving an expert opinion of health care providers involved regarding the accepted standard of care for HN's nurses in the claim, the physician is not simply because he is an internal medicine physician instead qualified on the issue of whether the of a nurse, we may not through inferences or otherwise fill health care provider departed from in the gaps in his report where he fails to detail why or the accepted standards of care for how he is qualified to opine about the applicable standard health care providers. However, if the of care for HN's nurses.”). Rowan contends that Madias's physician states he is familiar with report similarly fails to demonstrate a familiarity with the the standard of care for both nurses standard of care applicable to a nurse practitioner working in and physicians, and for the prevention cardiology. and treatment of the illness, injury, or condition involved in the claim,[*13] The Texas Civil Practice and Remedies Code sets forth the physician is qualified on the issue the criteria for an expert witness against a health care provider of whether the health care provider such as Rowan: departed from the accepted standards of care for health care providers.

(b) In a suit involving a health care liability claim against Further, if a physician states he is a health care provider, a person may qualify as an expert familiar with the standard of care witness on the issue of whether the health care provider and responsibilities and requirements departed from accepted standards of care only if the person: for physician's assistants, and he has worked with, interacted with, and (1) is practicing health care in a field of practice that supervised physician's assistants, the involves the same type of care or treatment as that physician is qualified on the issue delivered by the defendant health care provider, if the of whether the health care provider defendant health care provider is an individual, at the departed from the accepted standards time the testimony is given or was practicing that type of care for health care providers. of health care at the time the claim arose;

Baylor Med. Center at Waxahachie v. Wallace, 278 (2) has knowledge of accepted standards of care for S.W.3d 552, 558 (Tex.App.Dallas 2009, no pet.)(citations health care providers for the diagnosis, care, or treatment omitted).Compare Simonson v. Keppard, 225 S.W.3d 868, of the illness, injury, or condition involved in the claim;

873 (Tex.App.-Dallas 2007, no pet.)(physician not qualified and to opine on standard of care for nurse practitioner because (3) is qualified on the basis of training or experience his report does not “state that he either has knowledge of to offer an expert opinion regarding those accepted the standard of care applicable to nurse practitioners or that standards of health care. he has ever worked with or supervised nurse practitioners) and Jones v. Ark–La–Tex Visiting Nurses, Inc., 128 S.W.3d TEX. CIV. PRAC. & REM.CODE § 74.402(b). 393, 396 (Tex.App.Texarkana 2004, no pet.)(physician not qualified to opine on standard of care for nurse because his Applying this standard, the courts of appeals have “report fails to state [his] qualifications to give the standard consistently required a physician-expert proffering an opinion of care for nurses monitoring a patient in a home healthcare on the applicable standard of care of a nonphysician to setting”), with San Jacinto Methodist Hosp. v. Bennett, 256 affirmatively demonstrate experience and familiarity with the S.W .3d 806, 813 (Tex.App.-Houston [14th Dist.] 2008, no standard of care for the nonphysician's field. pet.)(physician qualified to opine on standard of care for nurse because his “report stated that he is familiar with the standard When a physician fails to state in of care for both nurses and physicians for the prevention and his expert report or affidavit that he treatment of decubitus ulcers”). has knowledge of the standard of care applicable to the specific types of[*14] Madias's report does not profess any knowledge about health care providers involved in the the standard of care applicable to nurse practitioners. He

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869 does not claim to have experience training or supervising Section 74.351 provides that, if a timely expert report is not nurse practitioners or provide any other basis for the trial filed, upon motion, the court “shall... enter an order that: ... court to conclude that he was familiar with such standard.

awards to the affected physician or health care provider In contending that Madias is qualified to opine about the reasonable attorney's fees and costs of court incurred by standard of care applicable to Rowan, the Gentrys only point the physician or health care provider.” TEX. CIV. PRAC. to evidence that Madias is “familiar with the management & REM.CODE § 74.351. This “automatic attorney's fees of patients with medical conditions similar to Mr. Gentry,” sanction comes into play when a timely but deficient expert and ask us to conclude that he “therefore would be familiar report has been filed.”Hightower v. Baylor Univ. Med. with the standard of care as it relates to nurses managing Ctr., 348 S.W.3d 512, 522 (Tex.App.-Dallas 2011, pet. such patients.”Neither the text of section 74.402 nor the cases denied). Thus, appellants Rowan and Houston Interventional interpreting it allow us to make such an assumption.

Cardiology are entitled to an award of reasonable attorneys' fees and costs incurred related to claims premised on care Because nothing in Madias's report demonstrates that he provided by Rowan.

is familiar with the standard of care applicable to nurse practitioners, we hold that the trial court abused its discretion by denying Rowan's motion to dismiss (and Houston Intervention Cardiology's motion to dismiss as it relates to CONCLUSION vicarious liability for Rowan's care of Gentry). We thus sustain appellants' second issue. We affirm the trial court's order denying appellants Tawa and Houston Interventional Cardiology's motion to dismiss claims related to Tawa's care of Gentry. We dismiss the Gentrys' B. Attorneys' Fees claims against appellants Rowan and Houston Interventional Rowan and Houston Intervention Cardiology request that Cardiology (only as to vicarious liability claims related to we reverse the trial court's order denying their motion to Rowan's care of Gentry). We remand to the trial court for an dismiss the Gentrys' claims related to Rowan's care and award of reasonable attorneys' fees and costs to Rowan and remand to the trial court with instructions to award to them Houston Interventional Cardiology related to the dismissed reasonable attorneys' fees and costs under section 74.351 of claims and for further proceedings. the Texas Civil Practice and Remedies Code. The Gentrys argue that an award of attorneys' fees under section 74.351 is not appropriate, even if Madias's report is deficient, because All Citations it is not so deficient that it should be considered “no report Not Reported in S.W.3d, 2013 WL 1694869 at all.”

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11

Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)

[2] Health 185 S.W.3d 65 Affidavits of merit or meritorious defense; Court of Appeals of Texas, expert affidavits San Antonio.

For an expert's report to constitute a “good- Marie TOVAR, Individually and as Representative faith effort” under the Medical Liability and of The Estate of Guadalupe M. Rodriguez, Insurance Improvement Act, the report must provide enough information to (1) inform the Guadalupe Palacios, and Gilda Sanchez, Appellants, defendant of the specific conduct the plaintiff has v. called into question, and (2) provide a basis for METHODIST HEALTHCARE SYSTEM

the trial court to conclude that the claims have OF SAN ANTONIO, LTD., L.L.P., d/b/a merit. Vernon's Ann.Texas Civ.St. art. 4590i, § Southwest Texas Methodist Hospital, Appellee. 13.01(l),(r)(6)(Repealed).

No. 04–05–00054–CV. | Nov. ^[16], 2005. 6 Cases that cite this headnote

Synopsis Background: Patient's estate brought medical malpractice [3] Health action against hospital, alleging that the negligence of Affidavits of merit or meritorious defense; hospital's nurses resulted in a delay in diagnosis that caused expert affidavits patient's condition to deteriorate and that the delay in In determining the adequacy of an expert diagnosis delayed the discovery of a cerebral hemorrhage. report under the Medical Liability and Insurance The 285th Judicial District Court, Bexar County, Lori Improvement Act, trial court should look no Massey, J., dismissed action, and estate appealed. further than the report itself, because all the information relevant to the inquiry is contained within the document's four corners. Vernon's [Holding:] The Court of Appeals, Sandee Bryan Marion, J., Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r) held that doctor's expert report satisfied Medical Liability and (6)(Repealed). Insurance Improvement Act's requirements on standard of Cases that cite this headnote care, breach of that standard, and causation.

[4] Health Reversed and remanded. Affidavits of merit or meritorious defense;

expert affidavits Although expert report under Medical Liability West Headnotes (12) and Insurance Improvement Act need not marshal all the plaintiff's proof, it must include the expert's opinion on each of the three elements [1] Health that the Act identifies: standard of care, breach, Affidavits of merit or meritorious defense; and causal relationship. Vernon's Ann.Texas expert affidavits Civ.St. art. 4590i, § 13.01(l), (r)(6)(Repealed). Medical malpractice plaintiffs must provide each defendant physician and health care 6 Cases that cite this headnote provider an expert report with the expert's curriculum vitae, or voluntarily nonsuit the [5] Health action. Vernon's Ann.Texas Civ.St. art. 4590i, § Affidavits of merit or meritorious defense; 13.01(d)(Repealed). expert affidavits

Cases that cite this headnote Under Medical Liability and Insurance Improvement Act, expert report cannot merely

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)

state the expert's conclusions about standard of of standard of care with his conclusion that care, breach, and causal relationship; instead, the patient's neurological condition would not have expert report must explain the basis of expert's deteriorated, resulting in need for surgery. statements to link his conclusions to the facts. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(r) Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(r) (6)(Repealed). (6)(Repealed).

6 Cases that cite this headnote 2 Cases that cite this headnote

[9] Health [6] Health Affidavits of merit or meritorious defense;

Standard of Care expert affidavits Health It is not enough that expert report under Hospitals in General Medical Liability and Insurance Improvement The standard of care for a hospital or other Act provides insight about the plaintiff's claims. medical provider is what an ordinarily prudent Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(r) hospital or other medical provider would do (6)(Repealed). under the same or similar circumstances.

Cases that cite this headnote Cases that cite this headnote

[10] Health [7] Health Affidavits of merit or meritorious defense;

Standard of Care expert affidavits Health Medical Liability and Insurance Improvement Breach of Duty Act requires only a fair summary of the expert's opinions, and although a fair summary is Identifying the standard of care is critical in something less than all the evidence necessary medical malpractice action because whether to establish causation at trial, a fair summary a defendant breached his or her duty to a must contain sufficiently specific information to patient cannot be determined absent specific demonstrate causation beyond mere conjecture information about what the defendant should in order to meet the Act's requirements. have done differently.

Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(r) Cases that cite this headnote (6)(Repealed).

3 Cases that cite this headnote [8] Health

Affidavits of merit or meritorious defense;

[11] Health expert affidavits

Affidavits of merit or meritorious defense;

Doctor's expert report satisfied Medical Liability expert affidavits and Insurance Improvement Act's requirements Under Medical Liability and Insurance on standard of care, breach of that standard, and Improvement Act, plaintiff need not present causation; doctor's expert report sufficiently set evidence in the expert report as if it were actually forth standard of care because doctor specifically litigating the merits. Vernon's Ann.Texas Civ.St. stated what should have been done for patient art. 4590i, § 13.01(r)(6)(Repealed).

with acute neurological process, doctor's expert report also sufficiently set forth how standard Cases that cite this headnote of care was breached because he specifically stated what nurses should have done, but did not do, and doctor's expert report linked his [12] Health conclusion regarding nurses' alleged breach

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)

Affidavits of merit or meritorious defense; Although she was alert and oriented at the time, she expert affidavits complained of a headache and right-arm numbness. Ms. Under Medical Liability and Insurance Rodriguez was evaluated and an order admitting her to Improvement Act, expert report can be informal the Neurological Care Unit was written at approximately in that the information in the report does not have 5:10 p.m. However, she was not admitted to the unit until to meet the same requirements as the evidence approximately 8:00 p.m., allegedly because of a nursing offered in a summary-judgment proceeding or at shortage. Over the next several hours, Ms. Rodriguez was trial. Vernon's Ann.Texas Civ.St. art. 4590i, § seen by doctors who evaluated her condition, and nurses who 13.01(r)(6)(Repealed). documented her condition. At 9:30 p.m., a call placed to Dr.

Chandrahasan was returned by Dr. Osonma, who ordered Cases that cite this headnote medication to treat Ms. Rodriguez's blood pressure and nausea. At 12:30 a.m. the next morning, the nursing personnel called Dr. Garrison and reported neurological changes and elevated blood pressure. Dr. Garrison ordered an emergency Attorneys and Law Firms CT scan, which revealed a massive occipital parietal temporal hemorrhage. At 3:45 a.m., Ms. Rodriguez underwent surgery,[*66] Jeff Small, Law Office of Jeff Small, M. Stephen following which she was kept on life-support until she was Cichowski, Cichowski & Gonzalez, P.C., San Antonio, for transferred to a hospice where she died on June 13, 2001. appellants.

After filing suit against the hospital and doctors, appellants Lucretia R. Marmor, Ruth G. Malinas, Ball & Weed, P.C., filed the expert report of Dr. Kenneth C. Fischer. The hospital San Antonio, for appellee.

moved to dismiss appellants' claims on the grounds that Dr. Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Fischer's report did not adequately address the elements of Justice, SANDEE BRYAN MARION, Justice. standard of care, breach, and causation. After a hearing, the trial court granted the motion, and severed appellants' claims against the hospital from their claims against the doctors. This appeal ensued.

OPINION

Opinion by SANDEE BRYAN MARION, Justice.

ADEQUACY OF EXPERT REPORT

This is an appeal from the trial court's dismissal of appellants' medical malpractice case against appellee on the grounds that [1] [2] Medical-malpractice plaintiffs must provide each appellants' expert report did not satisfy the requirements of defendant physician and health-care provider an expert report the Medical Liability and Insurance Improvement Act (“the with the expert's curriculum vitae, or voluntarily nonsuit the Act”). In the underlying lawsuit, appellants sued three doctors action. See TEX.REV.CIV. STAT. ART.. 4590i, § 13.01(d) and Southwest[*67] Methodist Hospital, alleging, in part, (Vernon Supp.2003); 1 American Transitional Care Ctrs. that the hospital nurses' negligence resulted in a delay in of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). diagnosis that caused Guadalupe M. Rodriguez's condition The expert report must provide “a fair summary of the to deteriorate. Appellants contend the delay in diagnosis expert's opinions as of the date of the report regarding delayed the discovery of a cerebral hemorrhage. According to applicable standards of care, the manner in which the care appellants, if the hemorrhage had been discovered and treated rendered by the physician or health care provider failed sooner, Ms. Rodriguez's neurological deterioration and death to meet the standards, and the causal relationship between could have been averted. We reverse and remand.

that failure and the injury, harm, or damages claimed.” TEX.REV.CIV. STAT. ART.. 4590i, § 13.01(r)(6). If a defendant moves to dismiss the plaintiff's case based upon BACKGROUND the report's inadequacy, the trial court must grant the motion “only if it appears to the court, after hearing, that the report On June 7, 2001 at approximately 1:26 p.m., seventy-five- does not represent a good faith effort to comply with the year-old Guadalupe M. Rodriguez arrived at the hospital. definition of an expert report in Subsection (r)(6) of this

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005) section.” Id. § 13.01(l ). To constitute a “good-faith effort,” obvious deterioration at that time, they the report must provide enough information to (1) inform the meekly accepted inadequate responses defendant of the specific conduct the plaintiff[*68] has called of Dr. Garrison and Dr. Osonma with into question, and (2) provide a basis for the trial court to no further calls to physicians until conclude that the claims have merit. Palacios, 46 S.W.3d at 12:30 a.m. when the patient was in 879. extremis. The appropriate standard of care for nursing personnel treating a 1 Article 4590i was repealed by Act of June 2, 2003, patient with acute neurological process 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws is to promptly and expeditiously 847, 884, and has been re-codified at TEX. CIV. PRAC. transfer the patient to the appropriate & REM.CODE ANN. § 74.351 (Vernon Supp.2004) setting and carefully inform the (effective Sept. ^[1], 2003). Because the underlying lawsuit treating physicians of changes in was filed on August 11, 2003, all references in this the patient's clinical status so that opinion will be to former article 4590i. appropriate care can be rendered. [3] [4] [5] A trial court should look no further than The nursing personnel ... failed to the report itself, because all the information relevant to the perform these critical functions in inquiry is contained within the document's four corners. Id. at their management of Ms. Rodriguez, 878. Although the report need not marshal all the plaintiff's thereby breaching the standard of care. proof, it must include the expert's opinion on each of the three elements that the Act identifies: standard of care, breach, We conclude Dr. Fischer's report sufficiently sets forth and causal relationship. Id. A report cannot merely state the the standard of care because he specifically states what expert's conclusions about these elements. Id. at 879. Instead, should have been done for a patient “with acute neurological “the expert must explain the basis of his statements to link his process.” We also conclude Dr. Fischer's report sufficiently conclusions to the facts.” Bowie Mem'l Hosp. v. Wright, 79 sets forth how the standard of care was breached because he S.W.3d 48, 52 (Tex.2002). specifically states what the nurses should have, but did not, do.

STANDARD OF CARE AND BREACH OF THE STANDARD CAUSATION

[6] [7] [8] The standard of care for a hospital or other [9] To constitute a good-faith effort to establish the causal- medical provider is what an ordinarily prudent hospital or relationship element, the expert report must fulfill Palacios's other medical provider would do under the same or similar two-part test. See Wright, 79 S.W.3d at 52; Palacios, 46 circumstances. See Palacios, 46 S.W.3d at 880; see also S.W.3d at 879. It is not enough that the expert report Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 222 “provided insight” about the plaintiff's claims. Wright, 79 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). Identifying S.W.3d at 52. Nor may liability in a medical malpractice the standard of care is critical because whether a defendant suit be made to turn upon speculation or conjecture. See breached his or her duty to a patient cannot be determined Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex.App.- absent specific information about what the defendant should San Antonio 2004, no pet.). Therefore, although a fair have done differently. Palacios, 46 S.W.3d at 880. summary is something less than all the evidence necessary to establish causation at trial, a fair summary must contain Dr. Fischer's report stated the following with regard to the sufficiently specific information to demonstrate causation standard of care and the nurses' alleged breach of the standard beyond mere conjecture in order to[*69] meet the Act's of care: requirements and satisfy the Palacios test. See Wright, 79 S.W.3d at 52.

... [T]he nursing personnel provided poor documentation of the clinical On causation, Dr. Fischer's report stated the following: status of Ms. Rodriguez between 5 p.m. and 9 p.m. Despite the patient's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)

In Lopez, the plaintiffs relied on the following single sentence The results of the standard of care departures exercised in the report to establish causation: “Additionally, it is the by Dr. Chandrahasan, Garrison, Osonma, and the nursing aspiration of the bridge section which caused and precipitated personnel in the ER and the receiving floor caused the medical circumstances leading to the patient's demise.” a substantial delay in the appropriate diagnosis and 131 S.W.3d at 60. A panel of this court concluded that this initiation of treatment for the cerebral hemorrhage statement was conclusory, and did not constitute a good sustained by Ms. Rodriguez. This type of lesion harbored by faith effort to comply with the statute's causation requirement Ms. Rodriguez requires prompt cessation of the Coumadin, because the statement did not provide information linking an immediate brain CT scan, immediate institution of fresh Montemayor's actions to Lopez's death. Id. frozen plasma to reverse the Coumadin, and obtaining neurological and neurosurgical consultation on a stat In Costello, the expert report contained the following single basis. The failure of Dr. Chandrahasan to promptly sentence on causation: “Dr. Schilling's report states, ‘If this have the patient transferred to the ICU from the ER patient would have been appropriately triaged and evaluated, as well as his failure to convey the particulars of Ms. then in all reasonable medical probability she would have Rodriguez' [sic] clinical situation to his on-call physician, survived.’[*70] ” Costello, 141 S.W.3d at 249. A panel Dr. Osonma, delayed the addressing of the patient's clinical of this court held that the expert's assertion that the patient deterioration. Similarly, the failure of Dr. Osonma and would have survived was conclusory and we listed a variety Dr. Garrison to respond appropriately to the changes of deficiencies in the report. Id. For example, the report conveyed to them by the nursing personnel also delayed did not explain the causal connection between failure to realization of the appropriate diagnosis. Again, the failure appropriately triage and evaluate and the patient's death; of the nursing personnel to insist upon prompt evaluation offered no explanation of what medical information a more of the patient's changing clinical status further delayed timely triage and evaluation would have revealed; did not diagnosis. Had the appropriate diagnosis been made state what would have been done had Christus not failed to expeditiously in the afternoon hours, when it should have act; did not state how Christus' failure to act was a substantial been, instead of 2 a.m. in the morning, when it was finally factor in bringing about the patient's death and without which discovered, the hemorrhage would have been detected at her death would not have occurred; and did not explain the a much earlier stage with the possibility of only medical medical basis or reasoning for the conclusion that Lozano “in treatment required as opposed to the desperate and all reasonable medical probability” would have survived. Id. unsuccessful surgery which transpired at 3:45 a.m. Within reasonable medical probability, the dramatic neurological [10] Although our opinion in Costello listed these various deterioration and death of Ms. Rodriguez would have been deficiencies, this list should not be construed as mandatory. averted. The failure of the doctors and nursing personnel to As we stated in Costello, the Act requires only “a perform within appropriate medical and nursing standards ‘fair summary’ ” of the expert's opinions. Id. Here, the unfortunately caused this untoward result. (Emphasis expert report meets that requirement. Dr. Fischer links added.) his conclusion regarding the nurses' alleged breach of the standard of care with his conclusion that Ms. Rodriguez's The hospital asserts Dr. Fischer's report contains no factual neurological condition would not have deteriorated, resulting statements or explanation supporting his conclusion that in the need for surgery. Dr. Fischer states that if the nurses had the nurses' conduct caused Ms. Rodriguez's death; does “carefully inform[ed] the treating physicians of changes in not identify what the nurses failed to communicate to the the patient's clinical status ... [the] type of lesion harbored by physicians between 9:30 p.m. and 12:30 a.m., and does Ms. Rodriguez .... [should have resulted in] prompt cessation not identify what information the doctors should have acted of the Coumadin, an immediate brain CT scan, immediate upon. The hospital argues Dr. Fischer's report is no more institution of fresh frozen plasma to reverse the Coumadin, adequate than the reports considered by this court in Lopez v. and obtaining neurological and neurosurgical consultation Montemayor, 131 S.W.3d 54 (Tex.App.-San Antonio 2003, on a stat basis ... [then] ... [w]ithin reasonable medical pet. denied) and Costello v. Christus Santa Rosa Health Care probability, the dramatic neurological deterioration and death Corp., 141 S.W.3d 245 (Tex.App.-San Antonio 2004, no of Ms. Rodriguez would have been averted.” We conclude Dr. pet.). We disagree. Fischer's report satisfies the Act's requirement on causation.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005) and represents a good-faith effort to provide a fair summary CONCLUSION

of the statutory elements of standard of care, breach, and [11] [12] “[A] plaintiff need not present evidence in the causation. For these reasons, we reverse the trial court's order report as if it were actually litigating the merits. The report of dismissal and remand the cause for further proceedings. can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” Palacios, All Citations 46 S.W.3d at 879. We conclude that Dr. Fischer's report put the defendant on notice of the conduct complained of, 185 S.W.3d 65

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

A trial court's determination about the adequacy of an expert report under the Medical Liability 46 S.W.3d 873 and Insurance Improvement Act is reviewed Supreme Court of Texas.

under an abuse-of-discretion standard. Vernon's AMERICAN TRANSITIONAL CARE Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6).

CENTERS OF TEXAS, INC. d/b/a

172 Cases that cite this headnote American Transitional Hospital, Petitioner, v. Teofilo PALACIOS and Maria Palacios, [3] Appeal and Error

Costs and Allowances individually and a/n/f of Gloria Janeth

Palacios and Rocio Daniela Palacios, Sanctions are generally reviewed under an abuse-of-discretion standard.

minors, Maria Angelica Palacios, and Sentry Insurance, a mutual company, Respondents. 68 Cases that cite this headnote

No. 99–1311. | Argued Dec. ^[6], 2000. | Decided May 10, 2001. | [4] Health Rehearing Overruled June 28, 2001. Affidavits of merit or meritorious defense;

expert affidavits Medical malpractice action was brought against hospital In determining the adequacy of an expert to recover for injuries patient allegedly suffered in fall at report under the Medical Liability and Insurance hospital. The 280th District Court, Harris County, Tony Improvement Act, the trial court should look Lindsay, J., dismissed case for failure to file expert report, no further than the report. Vernon's Ann.Texas as required by Medical Liability and Insurance Improvement Civ.St. art. 4590i, § 13.01(l). Act. Patient appealed. The Houston Court of Appeals, First District, reversed and remanded, 4 S.W.3d 857. On petition 9 Cases that cite this headnote for review, the Supreme Court, Hankinson, J., held that: (1) trial court's determination about adequacy of expert report [5] Health under Act is reviewed under abuse-of-discretion standard, and Affidavits of merit or meritorious defense;

(2) expert's report did not provide fair summary of standard expert affidavits of care and how it was breached.

For an expert's report to satisfy the requirements Court of Appeals' judgment reversed. of the Medical Liability and Insurance Improvement Act, the report need not marshal all the plaintiff's proof, but it must include the expert's opinion on each of the elements West Headnotes (12) identified in the statute. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l).

[1] Health 138 Cases that cite this headnote Necessity of Expert Testimony Expert testimony is necessary in medical- [6] Health malpractice cases. Vernon's Ann.Texas Civ.St.

Affidavits of merit or meritorious defense; art. 4590i, § 13.01(d).

expert affidavits 11 Cases that cite this headnote For an expert's report to constitute a good-faith effort under the Medical Liability and Insurance Improvement Act, the report must provide [2] Appeal and Error enough information to fulfill two purposes: first, Rulings on Motions Relating to Pleadings the report must inform the defendant of the specific conduct the plaintiff has called into

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720 question; second, and equally important, the same requirements as the evidence offered in report must provide a basis for the trial court to a summary-judgment proceeding or at trial. conclude that the claims have merit. Vernon's Vernon's Ann.Texas Civ.St. art. 4590i, § Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6). 13.01(l), (r)(6).

485 Cases that cite this headnote 85 Cases that cite this headnote

[7] Health [11] Health

Affidavits of merit or meritorious defense; Affidavits of merit or meritorious defense; expert affidavits expert affidavits A report that merely states the expert's Conclusory statement in expert's report that conclusions about the standard of care, breach, defendant hospital did not use precautions to and causation does not constitute a good-faith prevent patient's fall was not good-faith effort effort under the Medical Liability and Insurance to provide fair summary of standard of care Improvement Act. Vernon's Ann.Texas Civ.St. and how it was breached, and thus, dismissal of art. 4590i, § 13.01(l), (r)(6). medical malpractice action was warranted under Medical Liability and Insurance Improvement 262 Cases that cite this headnote Act; it could not be determined from that statement if expert believed that standard of care [8] Health required hospital to have monitored patient more Affidavits of merit or meritorious defense; closely, restrained him more securely, or done expert affidavits something else entirely. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6).

An expert's report that omits any of the statutory requirements does not constitute a good-faith 141 Cases that cite this headnote effort under the Medical Liability and Insurance Improvement Act. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6). [12] Health Affidavits of merit or meritorious defense;

46 Cases that cite this headnote expert affidavits

An expert's report does not constitute a good- [9] Health faith effort under the Medical Liability and Affidavits of merit or meritorious defense; Insurance Improvement Act if it simply states expert affidavits that he or she knows the standard of care and that it was or was not met. Vernon's Ann.Texas To avoid dismissal due to inadequacy of an Civ.St. art. 4590i, § 13.01(l), (r)(6).

expert's report under the Medical Liability and Insurance Improvement Act, a plaintiff need 111 Cases that cite this headnote not present evidence in the report as if it were actually litigating the merits. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6).

36 Cases that cite this headnote Attorneys and Law Firms

[*875] Matthew T. McCracken, John C. Marshall, James C. [10] Health Marrow, Dee L. Dawson, Marshall & McCraken, Houston, Affidavits of merit or meritorious defense; for Petitioner. expert affidavits D. John Leger, Leger & Coplen, Levon G. Hovnatanian, The expert's report in a medical malpractice Martin Disiere & Jefferson, Houston, Mickey C. Shyrock, action can be informal in that the information Law Office of Mickey C. Shyrock, Athens, for Respondents. in the report does not have to meet the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

Palacios and his family sued American Transitional and Opinion the treating doctors, respectively, for negligently failing to prevent the fall and negligently treating him after the fall. Justice HANKINSON delivered the opinion of the Court.

After ninety days passed from the date the Palacioses filed In this medical-malpractice case we determine the standards suit, American Transitional, along with the other defendants, for reviewing an expert report under section 13.01 of moved to require the Palacioses to file a $7,500 cost bond, the Medical Liability and Insurance Improvement Act. as required by section 13.01(b) of the Medical Liability TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01. The trial and Insurance Improvement Act. See TEX.REV.CIV. STAT. court dismissed the Palacioses' medical-malpractice claims ANN.. art. 4590i, § 13.01(b) (authorizing a trial court against American Transitional Care Centers, Inc., d/b/a to order a plaintiff to file a $7,500 cost bond for each American Transitional Hospital, because it determined that defendant physician or health-care provider if the plaintiff the Palacioses' expert report did not show a good-faith effort has not complied with the expert-report or $5,000 cost-bond to provide a fair summary of the expert's opinions about requirement in section 13.01(a)); id. § 13.01(a) (requiring the the standard of care, breach, and causation, as required by plaintiff to file either an expert report or a $5,000 cost bond section 13.01. See id. § 13.01(d), (e), (l), (r)(6). The court of for each defendant physician or health-care provider within appeals, after evaluating the trial court's decision as it would a ninety days of filing suit). The trial court granted the motion, summary-judgment decision, reversed, holding that the report and the Palacioses filed a cost bond for each defendant. did meet the statutory requirements. ^[4] S.W.3d 857, 860.

After 180 days passed from the date the Palacioses filed We hold that a trial court's decision to dismiss a case suit, American Transitional moved to dismiss the case against under section 13.01(e) is reviewed for abuse of discretion. it because the Palacioses did not file an expert report and We further hold that to constitute a good-faith effort to curriculum vitae, or nonsuit the claims against American provide a fair summary of an expert's opinions under section Transitional, as section 13.01(d) of the Act requires. Id. § 13.01(l ), an expert report must discuss the standard of care, 13.01(d), (e). The Palacioses moved for an extension of time breach, and causation with sufficient specificity to inform the to file the report, which the trial court granted. See id. § defendant of the conduct the plaintiff has called into question 13.01(f), (g). The Palacioses then filed a report prepared by and to provide a basis for the trial court to conclude that Dr. Catherine F. Bontke, who treated Palacios at the first the claims have merit. In this case, the trial court did not rehabilitation hospital. American Transitional again moved abuse its discretion in concluding that the challenged report to dismiss under section 13.01(e), claiming that the report does not meet the statutory requirements and in dismissing did not satisfy the statutory requirements. See id. § 13.01(l), with prejudice the claims against American Transitional. (r)(6). The trial court granted the motion, dismissed with Accordingly, we reverse the court of appeals' judgment and prejudice the claims against American Transitional, and dismiss with prejudice the Palacioses' claims. severed those claims to make the judgment against American Transitional final. See id. § 13.01(e).

Teofilo Palacios suffered brain damage and other severe injuries following a two-story fall at work. After almost The Palacioses appealed, and with one justice dissenting, the a year in an intensive rehabilitation program, he was court of appeals reversed and remanded after using summary- transferred to American Transitional Hospital for further judgment review standards to evaluate the sufficiency of rehabilitation. Although Palacios at that time was able to the expert report. ^[4] S.W.3d at 860. After indulging every[*876] communicate with others and respond to simple reasonable inference in the Palacioses' favor and eliminating commands, he required assistance with most daily tasks. In any deference to the trial court's decision, the court of appeals addition, due to the severity of his brain damage, Palacios' concluded that the trial court erred in dismissing the case physicians prescribed bed restraints for him. Nevertheless, because the Palacioses made a good-faith effort to provide while a patient at American Transitional, Palacios fell from a report that met the requirements of section 13.01(r)(6). his bed and required additional medical care for his injuries. Id. at 862–63. American Transitional petitioned for review His family claims that this fall caused him to sustain further challenging both the standard of review applied by the court brain injury, which impaired his ability to communicate with of appeals and the sufficiency of the Palacioses' report. others and to assist them in his care.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

[1] Texas courts have long recognized the necessity of requirements of subsections 13.01(l) and (r)(6) is a question expert testimony in medical-malpractice cases. E.g., Hart of law. They suggest that a trial court's decision on the v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965); Bowles v. adequacy of a report should be reviewed as a court would Bourdon, 148 Tex. ^[1], 219 S.W.2d 779, 782 (1949). “There review a summary-judgment decision: that is, by indulging can be no other guide [than expert testimony], and where want every reasonable inference and resolving any doubts in the of skill and attention is not thus shown by expert evidence nonmovant's favor, and eliminating any deference to the trial applied to the facts, there is no evidence of it proper to be court's decision. We agree with American Transitional. submitted to the jury.” Hart, 399 S.W.2d at 792. Because expert testimony is crucial to a medical-malpractice case, [2] [3] The plain language of section 13.01 leads to the[*877] knowing what specific conduct the plaintiff's experts conclusion that abuse of discretion is the proper standard. have called into question is critical to both the defendant's First, the statute directs the trial court to grant a motion ability to prepare for trial and the trial court's ability to challenging the adequacy of an expert report if it “appears evaluate the viability of the plaintiff's claims. This makes to the court” that the plaintiffs did not make a good-faith eliciting an expert's opinions early in the litigation an obvious effort to meet the statutory requirements. Id. § 13.01(l). place to start in attempting to reduce frivolous lawsuits. See This language plainly vests the trial court with discretion. HOUSE COMM. ON CIV. PRAC., BILL ANALYSIS, Tex. See TEX. GOV'T CODE § 312.002. (“[W]ords shall be H.B. 971, 74th Leg., R.S. (1995). given their ordinary meaning.”). Second, the statute states that dismissal under section 13.01(e) is a sanction: If the Accordingly, in section 13.01, the Legislature requires requirements of section 13.01(d) are not met, the court must medical-malpractice plaintiffs, within 180 days of filing suit, “enter an order as sanctions” dismissing the case and granting either to provide each defendant physician and health-care the defendant its costs and attorneys' fees. TEX.REV.CIV. provider with an expert report and the expert's curriculum STAT. ANN .. art. 4590i, § 13.01(e). Sanctions are generally vitae, or to nonsuit the claims. TEX.REV.CIV. STAT. ANN.. reviewed under an abuse-of-discretion standard. Koslow's v. art. 4590i, § 13.01(d). If the plaintiff fails within the time Mackie, 796 S.W.2d 700, 704 (Tex.1990). And we presume allowed either to provide the expert reports and curriculum the Legislature was aware of the standard of review ordinarily vitae, or to nonsuit the case, the trial court must sanction applied in sanctions cases when it explicitly identified a the plaintiff by dismissing the case with prejudice, awarding court's dismissal under section 13.01(e) as a sanction.[*878] costs and attorney's fees to the defendant, and ordering the See McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125, 128 forfeiture of any applicable cost bond necessary to pay that (1943) ( “All statutes are presumed to be enacted by the award. Id. § 13.01(e). If the plaintiff does timely file a report, legislature with full knowledge of the existing condition of the defendant may move to challenge the adequacy of the the law and with reference to it.”). report, and the trial court must grant the motion if “it appears to the court ... that the report does not represent a good faith Nevertheless, the court of appeals concluded that the usual effort to comply with the definition of an expert report.” Id. standard of review for sanctions should not apply here. The § 13.01(l). The statute defines an expert report as “a written court reasoned that the provisions of article 4590i at issue report by an expert that provides a fair summary of the expert's here were intended to discourage frivolous lawsuits, while opinions ... regarding applicable standards of care, the manner sanctions, in contrast, are a response to litigation misconduct. in which the care rendered ... failed to meet the standards, We disagree with this distinction. and the causal relationship between that failure and the injury, harm, or damages claimed.” Id. § 13.01(r)(6). If a trial court Filing a frivolous lawsuit can be litigation misconduct subject determines that an expert report does not meet these statutory to sanction. See TEX.R. CIV. P. 13 (imposing sanctions for requirements and the time for filing a report has passed, filing groundless motions, pleadings, or other papers in bad it must then dismiss with prejudice the claims against the faith or for the purposes of harassment). And one purpose defendant who has challenged the report. Id. § 13.01(e). of the expert-report requirement is to deter frivolous claims.

HOUSE COMM. ON CIV. PRAC., BILL ANALYSIS, Tex.

American Transitional contends that a trial court's H.B. 971, 74th Leg., R.S. (1995). The Legislature has determination about the adequacy of an expert report determined that failing to timely file an expert report, or should be reviewed under an abuse-of-discretion standard. filing a report that does not evidence a good-faith effort to The Palacioses respond that whether a report meets the comply with the definition of an expert report, means that

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720 the claim is either frivolous, or at best has been brought on each of those elements, the report must provide enough prematurely. See id. This is exactly the type of conduct for information to fulfill two purposes if it is to constitute a good- which sanctions are appropriate. See TransAmerican Natural faith effort. First, the report must inform the defendant of the Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991) specific conduct the plaintiff has called into question. Second, (holding that “death-penalty” sanctions are appropriate when and equally important, the report must provide a basis for a party's discovery abuse justifies a presumption that its the trial court to conclude that the claims have merit. See 4 claims lack merit). For these reasons, we hold that an abuse- S.W.3d at 865 (Taft, J. dissenting); Wood v. Tice, 988 S.W.2d of-discretion standard of review applies to a trial court's 829, 830 (Tex.App.—San Antonio 1999, pet. denied) (noting decision to dismiss a case under section 13.01(e). that one of the purposes of article 4590i is to deter frivolous claims).

[4] We next consider whether the trial court abused its discretion in dismissing the Palacioses' claims against [7] [8] [9] [10] A report that merely states the expert's American Transitional. The parties disagree about how conclusions about the standard of care, breach, and causation to determine a report's adequacy under section 13.01(l ). does not fulfill these two purposes. Nor can a report meet American Transitional argues that the trial court must engage these purposes and thus constitute a good-faith effort if it in a two-step process: (1) the trial court must determine omits any of the statutory requirements. See, e.g., Hart, 16 whether the report constitutes a fair summary of the expert's S.W.3d at 877 (holding that a report was inadequate because opinions, TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(r) it stated that the patient had a heart attack and the doctor (6); and (2) if the trial court concludes that the report is not breached the standard of care, without describing the standard a fair summary, it must then look outside the report at the of care); Wood, 988 S.W.2d at 831–32 (holding that an expert plaintiff's conduct to determine whether the plaintiff made report did not meet the statutory requirements because it did a good-faith effort to meet the statutory requirements, id. not name the defendants, state how the defendants breached § 13.01(l ). The Palacioses, on the other hand, argue that the standard of care, demonstrate causation and damages, or the statute requires only one inquiry—whether the report include a curriculum vitae). However, to avoid dismissal, a evidences a good-faith effort to provide a fair summary of the plaintiff need not present evidence in the report as if it were expert's opinions. According to the Palacioses, the trial court actually litigating the merits. The report can be informal in does not have to make any factual determinations because the that the information in the report does not have to meet the only relevant information is in the report itself. We agree with same requirements as the evidence offered in a summary- the Palacioses that a trial court should look no further than the judgment proceeding or at trial. See, e.g., TEX.R. CIV. P. report in conducting a section 13.01(l ) inquiry. 166(f) (setting out the requirements for the form and content of affidavits offered as summary-judgment proof); TEX.R. The issue for the trial court is whether “the report” represents EVID. 802 (stating that most hearsay is inadmissible). a good-faith effort to comply with the statutory definition of an expert report. Id. § 13.01(l ). That definition requires, as [11] American Transitional contends that Dr. Bontke's to each defendant, a fair summary of the expert's opinions report does not meet the statutory requirements because about the applicable standard of care, the manner in which the it does not represent a good-faith effort to provide a fair care failed to meet that standard, and the causal relationship summary of her opinion on the standard of care and how between that failure and the claimed injury. Id. § 13.01(r) American Transitional breached that standard. The Palacioses (6). Because the statute focuses on what the report discusses, respond that the following parts of Dr. Bontke's report the only information relevant to the inquiry is within the four establish these elements: corners of the document.

Based on the available documentation I was able to [5] [6] Under subsections 13.01(l ) and (r)(6), the expert conclude that: Mr. Palacios fell from his bed on 5/14/94 report must represent only a good-faith effort to provide a while trying to get out of it on his own. The nursing notes fair summary of the expert's opinions. A report need not document that he was observed by nursing on the hour marshal all the plaintiff's proof, but it must include the expert's for two hours prior to the fall. In addition, ten minutes opinion on each of the elements identified in the statute. See before the fall, the nursing notes documents [sic] the his[*879] Hart v. Wright, 16 S.W.3d 872, 877 (Tex.App.—Fort wrist/vest restraints were on. Yet, at the time of his fall Worth 2000, pet. denied). In setting out the expert's opinions he was found on the floor with his vest/wrist restraints on but not tied to the bed. It is unclear how he could untie

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720 statement of a standard of care. Neither the trial court nor all four of the restraints from the bedframe in under ten American Transitional would be able to determine from this minutes. Obviously, Mr. Palacios had a habit of trying to conclusory statement if Dr. Bontke believes that the standard undo his restraints and precautions to prevent his fall were of care required American Transitional to have monitored not properly utilized.

Palacios more closely, restrained him more securely, or done .... something else entirely. “It is not sufficient for an expert to simply state that he or she knows the standard of care All in all, Mr. Palacios sustained a second brain injury with and concludes it was [or was not] met.” See Chopra v. a left subdural hematoma while he was an inpatient at [the Hawryluk, 892 S.W.2d 229, 233 (Tex.App.—El Paso 1995, Hospital].... [I]n my opinion, the medical care rendered to writ denied). Knowing only that the expert believes that Mr. Palacios at the time of his second brain injury was American Transitional did not take precautions to prevent below the accepted and expected standard of care which the fall might be useful if American Transitional had an he could expect to receive. Moreover, this [sic] below the absolute duty to prevent falls from its hospital beds. But as accepted standard of care extends to both the cause of the a general rule, res ipsa loquitur does not apply in medical- second injury as well as the subsequent treatment.... malpractice cases. TEX.REV.CIV. STAT. ANN.. art. 4590i, § 7.01 (limiting res ipsa loquitur in medical malpractice to The Palacioses rely mostly on one sentence in the report the limited classes of cases to which it applied as of August to establish the standard of care: “Mr. Palacios had a habit 29, 1977); Haddock v. Arnspiger, 793 S.W.2d 948, 951 of[*880] trying to undo his restraints and precautions to (Tex.1990).

prevent his fall were not properly utilized.” They argue that the inference can be made from that sentence, along with the When the expert report's conclusory statements do not put statement that “[i]t is unclear how he could untie all four of the the defendant or the trial court on notice of the conduct restraints from the bed frame in under ten minutes,” that Dr.

complained of, section 13.01(l ) affords the trial court no Bontke believes American Transitional's staff should have discretion but to conclude, as the trial court did here, that tied the restraints to the bed more securely.

the report does not represent a good-faith effort to provide a fair summary of the standard of care and how it was [12] The standard of care for a hospital is what an breached, as section 13.01(r)(6) requires. And because the ordinarily prudent hospital would do under the same or statutory 180 day time period had passed when the trial court similar circumstances. See Birchfield v. Texarkana Mem'l here made that determination, section 13.01(e) required the Hosp., 747 S.W.2d 361, 366 (Tex.1987). Identifying the court to dismiss with prejudice the Palacioses' claims against standard of care is critical: Whether a defendant breached his American Transitional. See TEX.REV.CIV. STAT. ANN.. or her duty to a patient cannot be determined absent specific art. 4590i, § 13.01(e). Accordingly, we reverse the court of information about what the defendant should have done appeals' judgment and dismiss with prejudice the Palacioses' differently. “While a ‘fair summary’ is something less than a claims.

full statement of the applicable standard of care and how it was breached, even a fair summary must set out what care was expected, but not given.” 4 S.W.3d at 865 (Taft, J. dissenting). All Citations The statement the Palacioses rely upon—that precautions to prevent Palacios' fall were not properly used—is not a 46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

§ 217.11. Standards of Nursing Practice, 22 TX ADC § 217.11

Texas Administrative Code

Title 22. Examining Boards

Part 11. Texas Board of Nursing

Chapter 217. Licensure, Peer Assistance and Practice