² Cases that cite this headnote Holdings: The Court of Appeals, Eva M. Guzman, J., held that [4] Health [1] optometrist was not qualified to give expert opinion Affidavits of Merit or Meritorious Defense; regarding standard of care, and Expert Affidavits Optometrist was not qualified to give expert [2] trial court did not abuse its discretion by awarding attorney opinion regarding standard of care in patient's fees and cost to physician. medical malpractice action against physician who specialized in ophthalmology and, thus, trial court did not abuse its discretion by dismissing Affirmed. case for failing to timely file expert report; optometrist was not a physician, and pursuant Price, Senior Justice, concurred and filed a separate opinion. to statute, only a physician could qualify as an expert witness on the issue of whether a physician departed from the standards of medical West Headnotes (5) care, patient did not show that his act of filing expert report authored by optometrist constituted good faith effort to comply with statute, and [1] Appeal and Error nothing indicated that the report was curable Rulings on Motions Relating to Pleadings by a discretionary 30-day extension. V.T.C.A., Court of Appeals applies an abuse of discretion Civil Practices & Remedies Code §§ 74.351(a, standard in reviewing a trial court's decision, in c), 74.401(a). an action asserting a health care liability claim, on a motion to dismiss in which a defendant 6 Cases that cite this headnote claims the expert opinion was untimely served. [5] Costs © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Davis v. Webb, 246 S.W.3d 768 (2008) On Dismissal, Nonsuit, Default, or left in Davis's eye due to a small capsular tear. Webb saw Settlement Davis shortly after the surgery for post-operative treatment, Trial court did not abuse its discretion and it is Webb's post-operative treatment that Davis claims by awarding attorney fees and cost to fell below the acceptable standard of care. According to physician following dismissal of patient's Davis's petition filed on October 6, 2006, Webb failed to: (a) medical malpractice action against physician for perform a one-day postoperative assessment, (b) document failure to timely serve required expert report; Davis's chief complaint, (c) assess all structures of the eye, dismissal of defendant's suit was appropriate. (d) perform a dilated fundus assessment, and (e) provide V.T.C.A., Civil Practice & Remedies Code § a treatment and management plan. He claims this alleged 74.351(b)(1). mistreatment caused

⁵ Cases that cite this headnote blurred vision, significant pain, and seeing rings for weeks.... Mr. Davis had to undergo numerous other surgeries, suffered from cystoid macular edema in his operative eye, Attorneys and Law Firms and will continue to suffer a severe loss *769 Jason Bradley Ostrom, Houston, for appellant. of visual acuity. Mr. Davis is now at risk for developing recurrent cystoid T. Marc Calvert, Houston, for appellant. macular edema, chronic inflammation, glaucoma, decompensation [of] which Panel consists of Chief Justice HEDGES, Justice GUZMAN, could require a corneal transplant, and and Justice FRANK C. PRICE. * retinal detachment. * Former Justice Frank C. Price sitting by assignment. Davis timely served an expert report on February 2, 2007. 1 This report was authored by Anastis Pass, O.D., M.S., J.D., FAAO, who is a doctor of optometry, but not a physician. 2 MAJORITY OPINION On February 23, 2007, Webb filed a motion to dismiss alleging that Davis failed to timely file an expert report EVA M. GUZMAN, Justice. because Pass does not meet the statutory qualifications for an In this medical malpractice case, we determine whether an expert. 3 Webb also timely objected to the sufficiency of the optometrist may generate an expert report concerning an report. 4 On March 27, 2007, the *771 trial court granted the ophthalmologist's alleged departure from accepted standards motion and subsequently rendered final judgment on August of medical care. Because *770 an ophthalmologist is a 6, 2007, awarding attorneys' fees and costs to Webb. This physician and an optometrist is not, and only a physician appeal followed. is qualified to author an expert report regarding whether a physician departed from accepted standards of medical 1 The version of section 74.351(a) applicable to this suit care, we affirm the trial court's dismissal of this lawsuit. We required an expert report in a health care liability claim further conclude that the trial court properly awarded appellee to be served 120 days from the date the claim was filed. attorneys' fees and costs. We therefore affirm the judgment See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ of the trial court. 10.01, 10.09, 23.02(a), (d), 2003 Tex. Gen. Laws 847, 864, 875, 884, 898–99, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. I. FACTUAL AND PROCEDURAL BACKGROUND Laws 1590, 1590 (current version at TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) (Vernon Supp.2007)). On October 7, 2004, appellee John Q.A. Webb, Jr., M.D., a The Legislature later amended section 74.351(a) to physician specializing in ophthalmology, performed surgery require a claimant to serve an expert report not later to remove a cataract from appellant William Davis's left eye. than the 120th day after the original petition is filed. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § During the surgery, fragments of lens nucleus were allegedly © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Davis v. Webb, 246 S.W.3d 768 (2008) 1, 2005 Tex. Gen. Laws 1590, 1590 (current version at challenging the adequacy of an expert report if it appears to TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) the court, after hearing, that the report does not represent an (Vernon Supp.2007)). That amendment, however, does objective good-faith effort to comply with the requirements not apply to this lawsuit. See Act of May 18, 2005, 79th of an expert report as set forth in section 74.351(r)(6). Id. § Leg. R.S., ch. 635, § 2, 2005 Tex. Gen. Laws 1590, 1590 74.351(l ). (providing that 2005 amendment of section 74.351(a) applies only to causes of action that accrued on or after Under subsection 74.351(r)(6), an “expert report” is defined amendment's effective date of September 1, 2005). Thus, as: Davis was required to serve his expert report(s), with curriculum vitae of each expert listed in the report(s), a report by an expert that provides a by February 3, 2007. For simplicity's sake, references to fair summary of the expert's opinions section 74.351(a) in the remainder of this opinion will be to the version applicable to this lawsuit. as of the date of the report regarding applicable standards of care, the 2 According to his curriculum vitae, Pass received his manner in which the care rendered doctoral degree in optometry from the Illinois College by the physician or health care of Optometry, his master's degree in physiological optics provider failed to meet the standards, from the University of Houston, and his juris doctorate and the causal relationship between from South Texas College of Law. Pass is also a Fellow that failure and the injury, harm, or of the American Academy of Optometry. damages claimed. 3 See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b) (Vernon Supp.2007). Id. § 74.351(r)(6). In turn, “expert” means, inter alia,: 4 See id. § 74.351(a). with respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of medical care, an expert qualified to testify under the II. ISSUES PRESENTED requirements of Section 74.401; In his first issue, Davis asserts that the trial court erred in with respect to a person giving opinion testimony regarding dismissing his claim because the report prepared by Pass is whether a health care provider departed from accepted deficient but curable pursuant to subsection 74.351(c) of the standards of health care, an expert qualified to testify under Texas Civil Practice and Remedies Code. In his second issue, the requirements of Section 74.402. Davis contends that, because the report was deficient rather than untimely or non-existent, the award of fees and costs Id. § 74.351(r)(5)(A), (B) (emphasis added). Under section based on dismissal must also be reversed. 74.401, only a physician may qualify as an expert regarding whether a physician departed from accepted standards of medical care. Id. § 74.401(a). According to section 74.402, in contrast, in a suit involving a health care liability claim III. ANALYSIS against a health care provider, another health care provider may qualify as an expert witness on the issue of whether the A. Standard of Review health care provider departed from accepted standards of care. Chapter 74 of the Texas Civil Practice and Remedies Code Id. § 74.402(b). Finally, under subsection 74.351(r)(5)(C), (the “Code”) requires a health care liability claimant to serve only a physician may render opinions regarding causation in providers with expert reports within 120 days of filing suit. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a). If an expert medical report. 5 Id. § 74.351(r)(5)(C). the claimant fails to timely serve a report, the trial court must grant the provider's motion to dismiss the claim, and 5 At oral argument, appellant's attorney acknowledged that the failure to do so is subject to interlocutory appeal. Id. §§ an entirely new report authored by a physician would be 51.014(a)(9), 74.351(b) (Vernon Supp.2007). If a report is necessary to address causation. timely served, but is deficient as to one or more elements, the [1] [2] [3] We apply an abuse-of-discretion standard in court may grant one 30–day extension to cure the deficiency. reviewing a trial court's decision on a motion to dismiss Id. § 74.351(c). But the trial court must grant a motion in which a defendant claims the expert opinion was *772 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Davis v. Webb, 246 S.W.3d 768 (2008) untimely served. Mokkala v. Mead, 178 S.W.3d 66, 70 of the Code, rather than “no expert report.” 7 According (Tex.App.-Houston [14th Dist.] 2005, pet. denied). An abuse to Davis, section 74.402 of the Code should apply when of discretion occurs when a trial court acts in an unreasonable determining the statutory qualifications of an expert in and arbitrary manner, or when it acts without reference to this case because Davis's post-operative treatment, although any guiding principles. Id. We defer to the trial court's factual provided by a physician, could have been provided by an determinations, but review questions of law de novo. 6 Id. optometrist. As noted above, section 74.402 establishes the Thus, to the extent resolution of the issue before the trial court qualifications of an expert witness testifying on the issue requires interpretation of the statute itself, we apply a de novo of whether a health care provider departed from accepted standard. Id. standards of care. TEX. CIV. PRAC. & REM.CODE ANN. § 74.402 (Vernon 2005). And Pass meets the statutory 6 Our sister court has cited Mokkala for the proposition definition of a health care provider. See id. § 74.001(a)(12) that the standard of review under section 74.351 is abuse (vi) (defining an optometrist as a “health care provider”). of discretion even when an appeal involves an issue of statutory interpretation. See Univ. of Tex. Health Sci. 7 We note that a trial court is not required to permit an Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871 extension when a report is deficient as to one or more n. 1 (Tex.App.-Houston [1st Dist.] 2007, no pet. h.); elements; the statutory language leaves the determination Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 795 of whether to permit an extension to the trial court's (Tex.App.-Houston [1st Dist.] 2007, no pet.). But in discretion. See TEX. CIV. PRAC. & REM.CODE ANN. Mokkala, we specifically identified the de novo standard § 74.351(c). Although the trial court stated in its of review as appropriate when resolving issues involving dismissal order that it would have granted a 30–day statutory interpretation, contrary to our sister court's extension had it found the report merely deficient, such interpretation of this case. Mokkala, 178 S.W.3d at 70. language is mere surplusage and has no bearing on whether the trial court abused its discretion in dismissing B. The Expert Report Davis's suit. See, e.g., Valley Mun. Util. Dist. No. 2 [4] In his first issue, Davis contends the trial court erred in v. Hild, 578 S.W.2d 827, 829 (Tex.Civ.App.-Houston dismissing his claims rather than granting a 30–day extension [1st Dist.] 1979, no writ) (stating that recitations in a to cure any deficiencies in his report. In its order of dismissal, dismissal order that do not constitute a judgment are mere the trial court noted as follows: surplusage). Webb responds that, because he is a physician, section The Court concludes that under the 74.401 of the Code establishes the necessary qualifications facts of this case and the applicable for an expert providing an expert report regarding the care law, no “expert report” has been rendered by a physician. *773 As discussed supra, this served. Accordingly, the Court has section provides that only a physician may qualify as an no basis to reach the plaintiff's expert witness on the issue of whether a physician departed request for a 30–day extension to from accepted standards of medical care. 8 Id. § 74.401(a). cure any deficiency found in the The term “physician” is defined to include, as is relevant proffered report. In the event [the] here, those individuals licensed to practice medicine. Id. § reviewing court(s) disagree with the 74.001(a)(23). An optometrist, on the other hand, is licensed conclusion that no “expert report” to practice optometry rather than to practice medicine. See has been served, this Court grants TEX. OCC.CODE ANN. § 351.002(4), (6), (7), (9) (Vernon such extension effective the date the reviewing court(s) issue a mandate 2004). 9 to this court. Because this Court concludes that no “expert report” was 8 This section permits the trial court to accept an expert served, the Court hereby dismisses report that departs from the criteria only if, “under the plaintiff's claims against defendant circumstances, the court determines that there is a good Webb with prejudice. reason to admit the expert's testimony. The court shall state on the record the reason for admitting the testimony if the court departs from the criteria.” Id. § 74.401(d) Davis asserts that the report filed by Pass was merely a (Vernon 2005). deficient report curable pursuant to subsection 74.351(c) © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Davis v. Webb, 246 S.W.3d 768 (2008) 9 Optometrists are regulated by the State Optometry regarding medical causation or the alleged breach of the Board. Id. §§ 351.002–.608 (Vernon 2004 & Supp.2007). standard of care applicable to a physician. See id. § 74.351(r) Regulations affecting optometrists are included in Title (5)(A) and (C). Second, the trial courts in both Leland and 3, Health Professions, but under Subtitle F, “Professions Foster did not dismiss the plaintiffs' lawsuits; instead, the Related to Eyes and Vision.” Id. Physicians, however, defendants appealed the trial court's denial of their motions are regulated in Subtitle B of Title 3, “Physicians.” to dismiss. Here, *774 the trial court dismissed Davis's Id. §§ 151.001–165.160. Physicians are regulated by case when it determined that no “expert report” had been the State Board of Medical Examiners and are licensed filed because, under the statutes governing expert reports, to practice medicine. Id. §§ 152.001, 155.001. Indeed, Pass is not qualified to offer an expert opinion applicable to section 155.001 explicitly states, “A person may not Webb. And Davis has provided no support for his argument practice medicine in this state unless the person holds a that filing an expert report authored by an optometrist license issued under [Subtitle B].” Id. § 155.001. constitutes a good faith effort to comply with the statutory Davis cites no cases in which an expert report by a health requirements for an expert report in a health care liability care provider such as an optometrist concerning the standard claim against a physician. Moreover, as noted above, even of care required of and allegedly breached by a physician if Pass were qualified to render opinion testimony regarding has been determined to constitute a good faith effort to the standard of care, he still is not qualified to render opinion comply with the statutory scheme. Instead, Davis relies on testimony about the causal relationship between Webb's Leland v. Brandal, a case in which a dentist was sued for alleged departure from the standard of care and Davis's malpractice and the plaintiff provided expert reports by an injuries because he is not a physician. See id. § 74.351(r)(5) anesthesiologist. 217 S.W.3d 60, 62 (Tex.App.-San Antonio (C). 2006, pet. granted). The dentist appealed the denial of his motion to strike the expert report. Id. The Fourth Court In sum, Davis has provided no authority supporting his of Appeals determined that the anesthesiologist had not contention that Pass meets the statutory requirements for an established that he was qualified to express an expert opinion expert in a medical malpractice claim against a physician. regarding the injuries alleged. Id. The court further concluded See id. § 74.401 (Vernon 2005). Moreover, nothing in section that a report had been filed, but was deficient. Id. Thus, 74.351(c) indicates that a report authored by an individual the trial court had discretion to grant a 30–day extension who is not statutorily qualified to offer an expert opinion is a under subsection 74.351(c). The appellate court reversed deficient report curable by a discretionary 30–day extension, and remanded so that the trial court could consider such an rather than “no expert report,” as the trial court determined extension. Id. here. See Danos v. Rittger, 253 S.W.3d 294, 2007 WL 625816, at *3–4 (Tex.App.-Houston [1st Dist.] March 1, Likewise, in Foster v. Zavala, on which Davis also relies, a 2007, pet. filed); see also Chisholm v. Maron, 63 S.W.3d podiatrist appealed the trial court's denial of his motion to 903, 905 (Tex.App.-Amarillo 2001, no pet.) (determining dismiss. 214 S.W.3d 106, 108–09 (Tex.App.-Eastland 2006, that because expert was not qualified, no report was filed pet. filed). The expert report served by Zavala was provided under the predecessor statute); Cuellar v. Warm Springs by a cardiovascular surgeon. Id. at 109. Because Zavala's Rehab. Found., No. 04–06–00698–CV, 2007 WL 3355611, expert was not practicing health care in a field of practice that at *3 (Tex.App.-San Antonio Nov.14, 2007, no pet. h.) involved the same type of care or treatment as the podiatrist, (mem.op.) (concluding that reports authored by individuals the Eleventh Court of Appeals reversed and remanded to not statutorily qualified as experts constituted “no report” and permit the trial court to consider whether to grant a 30–day did not constitute a “good faith effort” to comply with the extension under section 74.351(c). Id. at 117. statutory requirements); De La Vergne v. Turner, No. 04–06– 00722–CV, 2007 WL 1608872, at *1 (Tex.App.-San Antonio These cases are readily distinguishable from Davis's suit. June 6, 2007, no pet.) (mem.op.) (reasoning that because First, a physician authored the expert reports in each of plaintiff could cure deficiency only by obtaining a new report these cases, which is specifically authorized by subsections from a physician, trial court did not abuse its discretion in 74.351(r)(5)(D) (dentist) and (E) (podiatrist). See TEX. CIV. denying motion for grace period); Methodist Health Ctr. PRAC. & REM.CODE ANN. § 74.351(r)(5)(D), (E) (Vernon v. Thomas, No. 14–07–00085–CV, 2007 WL 2367619, at Supp.2007). But, as discussed above, Pass is not a physician. *4 (Tex.App.-Houston [14th Dist.] Aug. 21, 2007, no pet.) Thus, he is barred by statute from offering an expert opinion (mem.op.) (determining that plaintiffs could comply only © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Davis v. Webb, 246 S.W.3d 768 (2008) with the statutory requirements by filing a “wholly new report in accordance with the statutory requirements of Texas Civil by a different expert” and therefore a thirty-day extension was Practice and Remedies Code sections 74.351 and 74.401. not available). Unfortunately, sections 74.351 and 74.401 were drafted, in all likelihood inadvertently, in such a way as to create the Under these circumstances, we conclude the trial court was occasional miscarriage of justice. Hence, although I agree the within its discretion to dismiss the case. Thus, we overrule majority opinion is in accord with a plain reading of these Davis's first issue. sections, I cannot agree with the application of this statute under these circumstances for two reasons. C. Award of Costs and Attorneys' Fees First, when a physician is engaged in the work that only a [5] Under subsection 74.351(b)(1), the trial court must physician may render, the requirement that another physician enter an order awarding reasonable attorneys' fees and opine concerning that treatment logically follows. When, costs of court when dismissing a case for failure to timely however, a physician fails to provide the type of treatment serve the required expert report. See TEX. CIV. PRAC. & he could have delegated to another, or the type of treatment REM.CODE § 74.351(b)(1). Because dismissal of Davis's another often performs, this negligence should not be shielded suit was appropriate, the award of costs and fees was also by his medical degree. In these situations, the physician is proper. See id. (stating that the court shall enter an order “wearing another hat,” and the individuals who most often awarding reasonable attorneys' fees and costs on motion of adorn that hat might be aptly trained to opine as to the defendant, subject to the trial court's exercise of discretion to standard of care or causation. Such might be true when a grant a 30–day extension under subsection (c)). Accordingly, physician performs medical care at the site of an accident we overrule Davis's second issue. where an EMT would be best qualified to testify as to on- scene standards of care, or when a physician refers an injured patient to a physical therapist or chiropractor who, though IV. CONCLUSION not a physician, may have greater training and experience in rehabilitation and might be best qualified to opine as to We conclude the trial court did not abuse its discretion in causation in a review of post-operative care. Such is arguably holding that Davis failed to timely file the statutorily required true, as in the present case, where an optometrist is well-expert report. Thus, we overrule Davis's first issue. Because trained in post-operative treatment and is often charged by the trial court did not *775 abuse its discretion in dismissing an ophthalmologist to conduct this very care. When a doctor Davis's lawsuit, its award of attorneys' fees and costs was provides the type of after-care that another professional could appropriate. We therefore overrule Davis's second issue and provide, and does so negligently, his credentials should not affirm the trial court's judgment. force the plaintiff to face a higher predicate to bringing suit. In fact, the non-physician professional may be more equipped to perform the follow-up treatment, and that non-physician may be the more appropriate person to opine on the quality FRANK C. PRICE, Senior Justice, concurring. of treatment provided. FRANK C. PRICE, Senior Justice, concurring (Assigned). Second, our application of Texas Civil Practice and Remedies Appellant William Davis brought suit against John Q.A. Code sections 74.351 and 74.401 creates a dual standard in Webb, Jr. M.D., for his failure to provide appropriate post- our courts, whereby an individual cannot be an expert for the operative treatment. This failure led to serious medical purposes of an expert report unless he is a physician, but for problems for which Davis sought recovery, but that recovery the same individual to testify at trial the court could conduct was barred because of a defect in his expert report. Although the more permissive Daubert/Robinson test. See Daubert v. timely served, the expert report did not reflect the opinion of Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 a “physician” under Texas Civil Practice and Remedies Code L.Ed.2d 469 (1993); E.I. du Pont de Nemours and Co., Inc. v. section 74.401. Instead, Davis offered the expert opinion of an Robinson, 923 S.W.2d 549 (Tex.1995). If the court is capable optometrist who was proficient and trained in post-operative of being the gate-keeper at trial, the same latitude should be treatment and care. The trial court dismissed the lawsuit with *776 allotted the court in analysis of the expert report. prejudice, and a majority of this court upheld that dismissal, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Davis v. Webb, 246 S.W.3d 768 (2008) Accordingly, while concurring in the disposition of this case The Legislature drafted Texas Civil Practice and Remedies under the current law, I believe the application of the law to all Code sections 74.351 and 74.401 with an eye toward reducing fact-scenarios is problematic and can lead to the miscarriage the number of frivolous medical malpractice lawsuits in of justice in some instances. Texas, but in so doing failed to consider many possible scenarios where an expert who is not a physician might be qualified to opine as to the standard of care and/or causation All Citations in a case pursued against a physician. 246 S.W.3d 768 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. 7 Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010) 2010 WL 468061 On appeal from the 206th District Court of Hidalgo County, 2010 WL 468061 Texas, Rose Guerra Reyna, Judge. Only the Westlaw citation is currently available. Attorneys and Law Firms SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. David Luningham, Lauren M. Lockett, Fort Worth, for appellants. Court of Appeals of Texas, Corpus Christi-Edinburg. Mark Lesher, Texarkana, Steven M. Gonzalez, Edward Castillo, Gonzalez Palacios L.L.P., McAllen, for appellee. HEALTH CARE UNLIMITED, INC. and Health Care Unlimited-McAllen, Appellants, Before Justices RODRIGUEZ, GARZA, and BENAVIDES. v. Servando VILLARREAL, Appellee. MEMORANDUM OPINION No. 13-09-00456-CV. | Feb. 11, 2010. Memorandum Opinion by Justice RODRIGUEZ. West KeySummary *1 Appellants Health Care Unlimited, Inc. and Health Care Unlimited-McAllen (collectively HCU) complain of the trial court's denial of their motion to dismiss appellee 1 Health Servando Villarreal's health care liability claim for failure Affidavits of merit or meritorious defense; to serve an adequate expert report, as required by section expert affidavits 74.351. SeeTEX. CIV. PRAC. & REM.CODE ANN. § A doctor who had been continuously practicing 74.351(a)-(b) (Vernon Supp.2009). By one issue, HCU medicine in a field involving the same type of complains that the trial court abused its discretion by failing care involved in a health care liability claim to dismiss Villarreal's claims because his expert report did was qualified to submit an expert report. The not demonstrate that the expert is qualified, identify the patient alleged that the defendant hospital had applicable standard of care, or explain the causal connection left a sponge inside of his body when they between the alleged breach and Villarreal's injury. We affirm. operated on him. The sponge caused an infection, multiple health problems and had to be removed surgically. The doctor stated in his report that he had been licensed to practice medicine I. BACKGROUND and had continuously practiced medicine in In late July 2005, Villarreal underwent spinal fusion surgery the state of Texas since 1985. The doctor to repair a fractured lumbar vertebra in his back. Over the also stated that he was familiar with wound course of the next year, Villarreal suffered complications, treatment and the standards of care applicable including chronic refractory osteomyelitis-a recurring severe to physicians, nurses, hospitals, emergency abscess-on what Villarreal's expert report describes as his departments, wound care centers and home health care agencies. He also routinely was in left flank. 1 Villarreal was hospitalized once in January 2006, contact with other medical staff that takes care twice in March 2006, and once in August 2006, for treatment of patients with similar condition as the patient. of the abscess; each time, the abscess was surgically drained, Tex. Civ. Prac. & Rem.Code Ann. § 74.402(b) and at the March and August surgeries, the wound was (1)-(3), (c)(1)-(2). fitted with a vacuum assisted closure (VAC) sponge device to promote healing. After discharge from his August 2006 1 Cases that cite this headnote hospital stay, Villarreal began receiving home health care from HCU, which continued the use of the VAC sponge device in its treatment of Villarreal. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010) 2010 WL 468061 1 Renaissance Doctors Hospital, and Doctors Hospital, Osteomyelitis is defined as an “[i]nflammation of the Ltd. However, none of the foregoing are parties to this bone marrow caused by bacteria, such as staphylococci, appeal. that gains entry through a wound or injury.”IDA G. DOX ET AL., ATTORNEY'S ILLUSTRATED MEDICAL DICTIONARY O21 (1997). Flank is defined as the “side of the body between the ribs and the pelvis.”Id. II. STANDARD OF REVIEW at F21.Villarreal's expert report refers to the site of his AND APPLICABLE LAW infection interchangeably as his left flank or hip. *2 We review a trial court's decision on a motion to dismiss In June 2007, Villarreal was again admitted to the hospital under section 74.351 of the civil practice and remedies code because of continued drainage from the same wound in his for abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, left flank; doctors at the hospital determined that the wound 93 (Tex.2006); Am. Transitional Care Ctrs. of Tex., Inc. v. was infected. During surgery to incise and drain the wound, Palacios, 46 S.W.3d 873, 878 (Tex.2001). The trial court doctors discovered a foreign body in the wound, which was abuses its discretion if it acts unreasonably or arbitrarily or eventually determined to be a sponge from the VAC device. without reference to any guiding rules or principles. Walker The doctor who performed the surgery noted that the sponge v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). had been left in the wound so long that tissue had grown into the sponge. In September 2007, Villarreal underwent Under section 74.351 of the Texas Civil Practice and another surgery to remove more sponge material from the Remedies Code, a claimant must “serve on each party or same wound. the party's attorney” an expert report and curriculum vitae “not later than the 120th day after the date the original On October 10, 2008, Villarreal sued HCU, 2 alleging that petition was filed.”TEX. CIV. PRAC. & REM.CODE ANN. it had negligently left a sponge from the VAC device § 74.351(a). An expert report is “a written report by an in Villarreal's wound causing extended hospitalization and expert that provides a fair summary of the expert's opinions ... multiple surgeries to remove the sponge. Villarreal prayed regarding applicable standards of care, the manner in which for damages in the form of past and future medical expenses, the care rendered ... failed to meet the standards, and the past and future lost wages, past and future pain and mental causal relationship between that failure and the injury, harm, anguish, disfigurement, loss of enjoyment of life, and any or damages claimed.”Id. § 74.351(r)(6). other damages allowed by law. Villarreal served an expert report authored by Keith Miller, M.D. on January 29, 2009. In our review of the expert report, we are limited to the HCU objected to the adequacy of the report and filed a four corners of the report in determining whether the report motion to dismiss Villarreal's claims on the grounds that Dr. manifests a good faith effort to comply with the statutory Miller was unqualified as an expert, failed to identify the definition of an expert report. Palacios, 46 S.W.3d at applicable standard of care, and failed to explain the causal 878;seeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(l ) relationship between HCU's alleged breach and Villarreal's (requiring that the trial court “grant a motion challenging the injuries. See id. § 74.351(a)-(b), (r)(6). On April 13, 2009, adequacy of the expert report only if appears to the court, after the trial court found the report deficient but granted Villarreal hearing, that the report does not represent an objective good a thirty-day extension to submit a sufficient amended report. faith effort to comply” with the statutory definition). The See id. § 74.351(c). On May 11, 2009, Dr. Miller submitted an report “need not marshal all the plaintiff's proof.”Palacios, amended report, to which HCU filed further objections. After 46 S.W.3d at 878; Jernigan, 195 S.W.3d at 93. If the expert a hearing on HCU's objections and motion to dismiss, the trial report puts the defendant on notice of the specific conduct court overruled HCU's objections to the report and denied its complained of and provides the trial court a basis on which to motion to dismiss. This interlocutory appeal ensued. See id. conclude the claims have merit, the report represents a good- § 51.014(a)(9) (Vernon 2008) (authorizing an interlocutory faith effort to comply with the statute.Palacios, 46 S.W.3d at appeal of the denial of a motion to dismiss filed under section 879. 74.351(b)). 2 Villarreal also sued Drs. Noel Oliveira and Raul Barreda, III. DISCUSSION Doctors Hospital at Renaissance Wound Care Center, Edinburg Regional Medical Center, Rehab Center at © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010) 2010 WL 468061 By its sole issue, HCU argues that the trial court erred in denying its motion to dismiss Villarreal's claims because his (2) is actively practicing health care in rendering expert report was inadequate under section 74.351. SeeTEX. health care services relevant to the claim. CIV. PRAC. & REM.CODE ANN. § 74.351(a)-(b). Id.§ 74.402(c)(1)-(2); see also Polone v. Shearer, 287 S.W.3d 229, 238 (Tex.App.-Fort Worth 2009, no pet.). Chapter 74 does not require that the expert be a A. Qualifications of Dr. Miller specialist in the exact same field as the health care provider. See Roberts v. Williamson, 111 S.W.3d 113, First, HCU complains that Dr. Miller's amended report 121 (Tex.2003). Our analysis of the qualifications of fails to demonstrate that he is qualified to be an expert an expert under section 74.351 is limited to the four in Villarreal's case. HCU contends, in particular, that Dr. corners of the expert's report and curriculum vitae. San Miller's certification in family medicine does not qualify Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, him to render an opinion regarding chronic wound care 813 (Tex.App.-Houston [14th Dist.] 2008, no pet.). management, the type of care HCU provided to Villarreal. Our review of Dr. Miller's expert report and curriculum vitae reveals that he is a medical doctor licensed in the State In a suit alleging health care liability against a health care of Texas and board-certified in family medicine who has provider, 3 a person qualifies as an expert witness if the been practicing for over twenty years. Dr. Miller served person: as a commissioner on the Texas State Board of Medical Examiners for nearly four years and as a faculty member at 3 It is undisputed that HCU is a health care provider both the University of Texas Health Science Center Family subject to chapter 74 of the civil practice and remedies Practice Residency Program and the Panola College School code. SeeTEX. CIV. PRAC. & REM.CODE ANN. § of Licensed Vocational and Registered Nursing. He also 74.001(12)(A) (Vernon 2005). worked for two years as the chief of staff and for ten years as the director of emergency services at the Shelby Regional (1) is practicing health care in a field of practice that Medical Center in Center, Texas. Dr. Miller's expert report involves the same type of care or treatment as that provides the following with regard to his qualifications that delivered by the defendant health care provider, if the is specifically relevant to this case: defendant health care provider is an individual, at the time the testimony is given or was practicing that type I am a medical doctor currently of health care at the time the claim arose; licensed to practice in the state of Texas. I have been a licensed *3 (2) has knowledge of accepted standards of care medical doctor since 1985, have for health care providers for the diagnosis, care, been practicing medicine continuously or treatment of the illness, injury, or condition since then, including during the involved in the claim; and time of this claim, and as part of my practice, have been, and am (3) is qualified on the basis of training or experience currently involved in the diagnosis, to offer an expert opinion regarding those accepted care, and treatment of many patients standards of health care. similar to Mr. Servando Villarreal. I am familiar with the diagnosis Id.§ 74.402(b)(1)-(3) (Vernon 2005). In determining and treatment of patients with whether a witness is qualified on the basis of training or conditions and their complications experience, we consider whether, at the time the claim similar to those experienced by Mr. arose or at the time the testimony is given, the witness: Servando Villarreal. I am familiar (1) is certified by a licensing agency of one or more with the standards of care applicable states of the United States or a national professional to physicians, nurses, hospitals, certifying agency, or has other substantial training emergency departments, wound care or experience, in the area of health care relevant to centers, and home health care the claim; and agencies, which treat patients with © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010) 2010 WL 468061 conditions similar to Mr. Servando Villarreal.... In addition, I interact with 7) my knowledge and experience giving lectures and in- nursing and other staff at hospitals, service conferences to nurses and staff; clinics, emergency rooms, wound 8) my experience serving on numerous hospital care centers, and home health care committees; agencies, on a daily basis, and I am familiar with the standard procedures 9) my observation of nurses and nurse conduct, supervising for physicians and nurses taking residents, and instructing nurses and residents in the care of patients like Mr. Servando evaluation, diagnosis, care and treatment of patients the Villarreal. I am familiar with these same as, or similar to, Mr. Servando Villarreal and standard procedures ... because I wound infections; and have treated many patients with these conditions. 10) my past use of wound VAC sponge devices on patients similar to Mr. Servando Villarreal.... *4 After summarizing the facts of Villarreal's treatment, Dr. Miller further described his qualifications as follows: .... I am familiar with the accepted medical standards of care I have had training and experience concerning providing applicable to the assessment, diagnosis, and treatment of home health care for patients receiving wound treatment, patients with wound infections, and their causes, as well generally, and wound VAC therapy specifically, to patients as their complications.... I know this on the basis of my such as Mr. Villarreal.... education, knowledge, training, and direct experience. HCU argues that Dr. Miller's statements regarding his I acquired this education, knowledge, training, and direct qualifications are conclusory and unsupported by the facts. experience through: We disagree. The information provided in Dr. Miller's report shows that he has been continuously practicing in a “field of 1) my attending, and successfully completing, medical practice that involves the same type of care or treatment as school classes, and residency, that teach the evaluation, that delivered” by HCU, wound treatment and maintenance. diagnosis, care and treatment of patients with ... wound SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b)(1); infections; Roberts, 111 S.W.3d at 121 (holding that an expert need not 2) practical experience of diagnosing and treating patients be a specialist in the exact field so long as he has knowledge, with ... wound infections; skills, expertise, and training regarding the specific issue in the case); see also Polone, 287 S.W.3d at 238-39 (holding 3) discussions with colleagues at yearly conferences, that a doctor is qualified where report states that he has seminars and meetings; experience treating other patients with conditions similar to those of the plaintiff). Furthermore, Dr. Miller states in his 4) study of technical works routinely published in report that, through his education and direct experience, he textbooks, journals and literature concerning the has knowledge of the standards of care applicable to HCU evaluation, diagnosis, care and treatment of patients in their treatment of patients with wounds like Villarreal. with ... wound infections; SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b)(2); see also Bennett, 256 S.W.3d at 814 (affirming the denial of 5) my routine discussions and consultations with other a health care provider's motion to dismiss because, in part, physicians who also treat patients with the same or the doctor was qualified to author the report based on his similar conditions as Mr. Servando Villarreal and wound experience working with and instructing nurses and other infections; staff who care for patients with bed sores). Finally, Dr. Miller 6) my routine and regular contact with hospital nurses, staff is licensed to practice in the state of Texas and has been and residents who take care of patients with the same or actively practicing medicine that is relevant to Villarreal's similar conditions as Mr. Servando Villarreal and wound claim, which demonstrates that he is “qualified on the basis of infections; training or experience to offer an expert opinion regarding” the standard of care applicable to this case. SeeTEX. CIV. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010) 2010 WL 468061 PRAC. & REM.CODE ANN. § 74.402(b)(3), (c)(1)-(2). We therefore conclude that Dr. Miller is qualified to provide an 4) The standard of care required that during the time expert report in Villarreal's case. they were caring for Mr. Servando Villarreal in 2006 and 2007 ... [HCU] ... should have properly cleaned the wound in Mr. Villarreal's left flank and properly removed and/ or replaced the wound VAC sponge device at least every B. Standard of Care and Breach two days. Proper technique in removing and/or replacing the wound VAC sponge device, [sic] would have involved *5 Second, HCU complains that Dr. Miller's amended report thoroughly exploring the full extent of the wound at each fails to set forth the applicable standard of care. Specifically, removal and/or replacement. This would ensure that any HCU contends that “Dr. Miller wholly fails to provide a fair old sponge devices or portions of the same would always summary of the care which was expected or specify what be found and removed and no foreign bodies would be left [HCU] should have done or indicate what actions taken by in this patient's wound. The nurses and staffs of ... [HCU] [HCU] deviated from the applicable standard of care.”See id.§ should have documented in the medical record that this 74.351(r)(6). wound had indeed been thoroughly explored, cleaned, and any old sponge device of [sic] parts thereof, [sic] had been In his amended report, Dr. Miller opines that the applicable completely removed prior to replacing any new sponge standard of care requires that HCU “do what a reasonable devices into the wound. home health care agency would have done under the same or similar circumstances, or not do what a reasonable home .... health care agency would not have done under the same or similar circumstances.”Dr. Miller emphasizes that the staff The breaches and violations of the standards of care are as of HCU “were responsible for assessing, removing, and/ follows: or changing this patient's wound VAC sponge device.”The amended expert report then sets forth the standard of care as *6 .... follows: 2) [HCU] ... failed the standard of care which required The accepted standards of medical care applicable to ... that ... [HCU] should have discovered the presence of a [HCU] in [its] care of Mr. Servando Villarreal ... include, foreign body in the left flank wound of this patient and but are not limited to, the following standards: alerted his physicians for appropriate treatment. The staff ... failed to assess Mr. Villarreal on a daily basis and make 1) This is a device which is placed routinely and as a matter sure that no wound VAC device remained in this patient's of course by the nurses and staff of facilities such as ... hip for more than two days.... [HCU], and this same device should have been removed and/or changed by ... the nurses and staffs. A “fair summary” of the applicable standard of care and breach identifies the type of care expected but not rendered .... and that is precisely the information that Dr. Miller's amended report provides. See Palacios, 46 S.W.3d at 880. 3) The standard of care required that, during the time they He explains the specific tasks and responsibilities required were caring for Mr. Servando Villarreal in 2006 and 2007, of HCU and notes that HCU failed to perform those tasks [HCU] ... should have discovered the presence of a foreign and responsibilities. We conclude that Dr. Miller's report body in the left flank wound of this patient and alerted sufficiently sets forth the standard of care and breach elements physicians for appropriate treatment. The staff of [HCU] ... required of expert reports under section 74.351. SeeTEX. should have assessed Mr. Villarreal on a daily basis and CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6). make [sic] sure that no wound VAC device remain [sic] in this patient's hip for more than two days. Since it was the staff of this facility that was treating Mr. Villarreal for his wound, it was their obligation to assess the wound at least C. Causation every two days. Third, HCU complains that Dr. Miller's amended report did not adequately identify the causal connection between HCU's © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010) 2010 WL 468061 alleged breach and Villarreal's injuries. HCU notes that bones and spine, resulting in a Villarreal was hospitalized four times in 2006 for treatment of severe bone infection or osteomyelitis, the abscess prior to the time HCU began caring for Villarreal neither of which would have occurred in August 2006. Emphasizing this fact, HCU argues that had the wound VAC device been Dr. Miller's statements regarding causation are conclusory, timely discovered and removed. Had fail to rule out conditions existing before HCU's treatment [HCU] ... cared for Mr. Servando of Villarreal, and fail to differentiate between the alleged Villarreal according to the acceptable negligence of HCU and the potentially negligent acts of other standards of care, then more likely health care providers who treated Villarreal before August than not and to a reasonable degree 2006. Our review of Dr. Miller's report indicates otherwise. of medical certainty, the foreign body in this patient's flank would have In his report, Dr. Miller describes Villarreal's injuries as they been found and removed in a timely appeared in June 2007: manner and Mr. Villarreal would not have undergone prolonged pain and Mr. Villarreal was admitted .... from 6-18-07 through suffering, multiple hospitalizations 6-26-07 for continued drainage from the same wound and surgical procedures, as well as from his left flank from which he had experienced overall worsening of his condition, trouble.... Upon admission, this patient was diagnosed pain mental anguish, and loss of with osteomyelitis of his lumbar spine with infection from dignity. multiple organisms. Mr. Villarreal was taken to surgery for incision and drainage of the this wound.... [The surgeon] To comply with section 74.351's requirements, an expert immediately discovered a foreign body in this wound report must include an explanation of the causal connection which was determined to be an old wound VAC sponge left between a defendant health care provider's departure from the in place. [The surgeon] noted that the sponge had been in standard of care and the injury, harm, and/or damages claimed place for so long that it “... appeared to have tissue grown by the plaintiff. TEX. CIV. PRAC. & REM.CODE ANN. § into it”. 74.351(r)(6). This requirement is met if the report explains [The surgeon] sent the removed sponge to pathology for the basis of the expert's statements and links his conclusions analysis which confirmed that the object was a “... wound to the facts. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d vac sponge showing reactive fibrosis and granulation 48, 52 (Tex.2002). By explaining how the sponge negligently tissue with foreign body giant cell reaction... negative for left in Villarreal's wound by HCU caused a severe infection significant acute inflammation”. that spread all the way to his bones and spine necessitating multiple painful surgeries, Dr. Miller has done just that. On 9-25-07, Mr. Villarreal was admitted ... with continued In other words, the expert report demonstrated the basis of drainage from his left flank wound. At this admission, he Dr. Miller's statement linking HCU's breach to Villarreal's was taken to surgery ... [which uncovered] more sponge infected abscess, resulting 2007 hospitalizations, and painful material in the wound.... recovery. See id. Dr. Miller opines that during the time it was caring for Based on the foregoing, we cannot conclude that the trial Villarreal in 2006 and 2007, HCU “should have discovered court abused its discretion in denying HCU's motion to the presence of a foreign body” in Villarreal's wound and dismiss. See Jernigan, 195 S.W.3d at 93; Palacios, 46 S.W.3d alerted his doctors for treatment. Dr. Miller further notes that at 878. Looking only within the four corners of Dr. Miller's it was HCU's obligation to “assess the wound on a daily basis” amended report, we hold that the report adequately identified and “change or remove any wound VAC device at least every Dr. Miller's qualifications and the applicable standard of two days.”He then states that HCU staff failed to perform care and HCU's breach and explained how, in Dr. Miller's these obligations and specifically concludes that: opinion, the breach caused Villarreal's injuries. See Palacios, 46 S.W.3d at 878. The report was a good faith effort to comply *7 Because this foreign body was with the statute because it put HCU on notice of the specific left in Mr. Villarreal's hip too long, conduct complained of and provided the trial court a basis on it caused severe infection which which to conclude the claims have merit. See id. at 879; TEX. spread all the way into this patient's © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Health Care Unlimited, Inc. v. Villarreal, Not Reported in S.W.3d (2010) 2010 WL 468061 The order of the trial court is affirmed. CIV. PRAC. & REM.CODE ANN. § 74.351(l ). HCU's sole issue is overruled. All Citations Not Reported in S.W.3d, 2010 WL 468061 IV. CONCLUSION 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. 7 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80 causation opinions. Rules App.Proc., Rule 33.2; Rules of Evid., Rule 103(a)(2). 206 S.W.3d 572 Supreme Court of Texas. 9 Cases that cite this headnote MACK TRUCKS, INC., Petitioner, v. [2] Appeal and Error Elizabeth TAMEZ et. al., Respondent. Necessity of presentation in general Except for fundamental error, appellate courts No. 03–0526. | Argued Oct. 20, are not authorized to consider issues not properly 2004. | Decided Oct. 27, 2006. raised by the parties. | Rehearing Denied Dec. 22, 2006. 26 Cases that cite this headnote Synopsis Background: Survivors of petroleum tanker driver who died [3] Evidence when his truck burst into flames brought action against the Necessity and sufficiency tanker manufacturer, asserting claims for negligence, strict liability, breach of implied warranty, and misrepresentation. In determining whether expert testimony is The 105th District Court, Nueces County, J. Manuel reliable, a court should examine the principles, Banales, J., granted summary judgment for the defendant research, and methodology underlying an manufacturer. The survivors appealed. The Corpus Christi– expert's conclusions. Rules of Evid., Rule 702. Edinburg Court of Appeals, Thirteenth District, 100 S.W.3d

¹⁰ Cases that cite this headnote 549, reversed and remanded. Tanker manufacturer appealed. [4] Evidence Necessity and sufficiency Holdings: The Supreme Court, Phil Johnson, J., held that: When the testimony involves scientific [1] the Court of Appeals could not consider expert's causation knowledge, the expert's conclusions must be testimony from bill of exceptions, and grounded in the methods and procedures of science. Rules of Evid., Rule 702. [2] testimony on causation from post-collision fuel-fed fire Cases that cite this headnote expert was not admissible. [5] Evidence Reversed and rendered. Necessity and sufficiency Trial court should consider the following factors when determining the reliability of expert West Headnotes (19) testimony involving scientific knowledge; (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies [1] Appeal and Error upon the subjective interpretation of the expert; Consideration of evidence excluded (3) whether the theory has been subjected to peer The Court of Appeals could not consider expert's review and/or publication; (4) the technique's causation testimony from bill of exceptions, in potential rate of error; (5) whether the underlying strict liability and negligence action arising from theory or technique has been generally accepted petroleum tanker fire that allegedly resulted from as valid by the relevant scientific community; defective fuel line, where the Court of Appeals and (6) the non-judicial uses that have been made did not first determine that the trial court erred of the theory or technique. Rules of Evid., Rule when it refused to admit expert's testimony 702. and reconsider its decision to exclude expert's © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80 of an expert's testimony when doing so will be

¹² Cases that cite this headnote helpful in determining reliability of an expert's testimony, regardless of whether the testimony is [6] Evidence scientific in nature or experience-based. Rules of Determination of question of competency Evid., Rule 702. A trial court has broad discretion in determining 17 Cases that cite this headnote whether expert testimony is admissible. Rules of Evid., Rule 702. [11] Evidence 10 Cases that cite this headnote Necessity and sufficiency In determining the reliability of an expert's [7] Appeal and Error testimony, the trial court should undertake a Competency of witness rigorous examination of the facts on which the expert relies, the method by which the expert The trial court's ruling concerning the draws an opinion from those facts, and how the admissibility of expert testimony will be expert applies the facts and methods to the case reversed only if that discretion is abused. at hand. Rules of Evid., Rule 702. 5 Cases that cite this headnote 9 Cases that cite this headnote [8] Evidence [12] Evidence Preliminary evidence as to competency Automobile Cases Because the party sponsoring the expert bears Testimony on causation from post-collision fuel- the burden of showing that the expert's fed fire expert was not admissible, in strict testimony is admissible, the burden of presenting liability and negligence action arising from understandable evidence that will persuade the petroleum tanker fire that allegedly resulted from trial court to admit the expert's testimony is on defective fuel line; at the hearing to determine the presenting party. Rules of Evid., Rule 702. the admissibility of expert's testimony expert 6 Cases that cite this headnote opined that the fire began in the fuel and battery systems of the tractor, he did not identify an alleged defect in the tractor's fuel system that was [9] Evidence the source of the fire, he did not specify which Necessity and sufficiency studies supported his conclusions, he did not When an expert's processes or methodologies testify that he analyzed or tested characteristics are obscured or concealed by testimony that of batteries like the battery in the wrecked is excessively internally contradictory, non- tractor, and he did not describe the process in responsive or evasive, a trial court will not have which he excluded other sources of ignition. abused its discretion in determining that the Rules of Evid., Rule 702. expert's testimony is not admissible. Rules of Evid., Rule 702. 4 Cases that cite this headnote 3 Cases that cite this headnote [13] Products Liability Proximate Cause [10] Evidence Products Liability Necessity and sufficiency Design A trial court should consider the factors Products Liability mentioned in E.I. du Pont de Nemours and Co. Miscellaneous products v. Robinson for determining the admissibility Sales © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80 Damages from breach that alleged defects caused diesel fuel leak in There was no evidence that alleged defects in tanker and that leak caused by the defect was petroleum tanker's fuel system, which allegedly ignition point for fire that occurred in connection caused diesel fuel leak, caused fire that with accident; such causation issues presented occurred in connection with tanker accident, as matters beyond the general understanding and required to support claims asserted against tanker common knowledge of lay jurors. manufacturer by survivors of tanker driver,

¹⁶ Cases that cite this headnote alleging negligence, misrepresentation, breach of warranty, and design, manufacturing, and marketing defects. [18] Judgment Torts 4 Cases that cite this headnote Expert testimony that an arced battery cable found in tractor of petroleum tanker could [14] Evidence possibly have ignited fire that occurred in Particular Facts or Issues connection with tanker accident, offered in Proof other than expert testimony will constitute opposition to tanker manufacturer's motion some evidence of causation only when a for summary judgment in strict liability and layperson's general experience and common negligence action by driver's survivors alleging understanding would enable the layperson to design defects, was speculative, and thus determine from the evidence, with reasonable insufficient to prevent summary judgment, since probability, the causal relationship between the expert did not testify that battery or its cable event and the condition. probably ignited the fire, and expert could not determine whether cable arced before the fire 24 Cases that cite this headnote was ignited or as it was being burned by an otherwise-ignited fire. [15] Evidence 24 Cases that cite this headnote Weight and Conclusiveness in General Expert testimony is required when an issue [19] Judgment involves matters beyond jurors' common Torts understanding. Circumstantial summary judgment evidence 12 Cases that cite this headnote suggesting that fire that occurred in connection with petroleum tanker accident quickly reached tanker driver, though consistent with theory [16] Trial asserted by driver's survivors, in strict Province of Court and Jury liability and negligence action against tanker Whether expert testimony is necessary to prove manufacturer, that fire originated with fuel a matter or theory is a question of law. from tractor's allegedly defective diesel fuel 3 Cases that cite this headnote system, did not make it more likely than not that the battery or some other allegedly improperly located ignition source ignited [17] Products Liability diesel from the tractor, as opposed to Trailers other possible sources of ignition such as Products Liability the cargo of crude oil, and thus such Design defect evidence was insufficient to preclude summary Expert testimony was required, in design defect judgment for manufacturer in survivors' action action brought by survivors of petroleum tanker alleging negligence, misrepresentation, breach driver against tanker manufacturer, to establish © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80 of warranty, and design, manufacturing, and Abram Tamez. Specifically, the Tamezes alleged that the marketing defects. tractor had design and manufacturing defects because (1) the fuel system was unreasonably prone to fail and release 209 Cases that cite this headnote diesel fuel in an environment conducive to ignition and fire; and (2) the tractor had ignition sources *576 such as hot manifolds and electric batteries in areas likely to contain released flammable fluids. The Tamezes also alleged that Attorneys and Law Firms Mack failed to provide warnings about the defects. *575 Sean E. Breen, Randy Howry, Herman Howry & 1 Elizabeth Tamez filed suit. Elsa Guerrero, Rosendo Breen, L.L.P., Austin, Robert Lee Galloway, Kellye Ruth Tamez, Sr., Dora Tamez, Rosa Elvia Gonzales, Donna Koehn, Thompson & Knight LLP, Houston, for petitioner. Kim Cantu, and Terrie L. Zay intervened. Rosa John Blaise Gsanger, William R. Edwards, William R. subsequently nonsuited. For ease of reference all the claimants will be referred to collectively as “the Edwards III, The Edwards Law Firm, L.L.P., Corpus Christi, Tamezes” or “the plaintiffs.” John Gonzales, John Gonzales & Associates, San Antonio, David O. Gonzalez, Law Offices of Baldemar Gutierrez, 2 Other defendants were Fruehauf Trailer Corporation, Alice, Glenn M. Boudreaux, Maryellen Hester, Boudreaux Norco Crude Gathering, Inc., Glitsch Canada, Ltd., and Leonard & Hammond, P.C., Houston, for for respondent. Snyder Tank Corp. The claims against those defendants were either nonsuited or settled and were severed from Opinion the claims against Mack. Justice JOHNSON delivered the opinion of the Court. In connection with its claims against Mack, the Tamezes identified Ronald Elwell as an expert on post-collision, fuel- In this truck accident case the trial court excluded expert fed fires. Mack moved to exclude his testimony as unreliable testimony as to what caused a post-accident fire that burned and moved for summary judgment. Mack asserted multiple the truck and the driver. After excluding the expert testimony grounds for seeking summary judgment. Some grounds for because it was not reliable, the trial court granted summary its motion were directed at particular plaintiffs, while some judgment. The court of appeals reversed. We hold that the grounds were directed at all the Tamezes. One part of Mack's trial court did not err, reverse the court of appeals' judgment, motion directed at all the Tamezes was a Rule 166a(i) motion and render judgment that the plaintiffs take nothing. urging that the Tamezes could present no evidence that any alleged defects caused the fire. The Tamezes responded to the no-evidence part of Mack's motion, in part, by filing Elwell's deposition and his expert report. They also later submitted I. Background Elwell's testimony from a bill of exceptions. On October 19, 1996, Abram Tamez was operating a Mack Truck tractor hauling a trailer of crude oil. Tamez was Pretrial matters, including a Robinson 3 hearing pursuant to rounding a curve in the road when the tractor and trailer Mack's motion to exclude Elwell's testimony, were scheduled overturned. A fire erupted and burned the trailer, its cargo, and heard. During the Robinson hearing Elwell testified. He and the tractor. Tamez was able to climb out of the tractor, expressed the opinion that the fire was started by the tractor's but he was badly burned and died as a result of his injuries. battery, which was located too near the fuel tanks, igniting the tractor's diesel fuel, which in turn ignited the trailer's cargo As a result of Tamez's death, suit was filed 1 against the of crude oil. tractor's manufacturer, Mack Trucks, Inc., and others. 2 3 E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d The Tamezes alleged that Mack defectively designed, manufactured and marketed the tractor. They claimed that 549 (Tex.1995). Mack was liable for negligence, gross negligence, strict The trial court granted Mack's motion to exclude Elwell's products liability, breach of warranty, and misrepresentation. testimony as to causation. The Tamezes later moved the All five theories were based on the same complaint: diesel trial court to reconsider its decision. The court denied the fuel from the truck's fuel system originated the fire that burned motion but allowed the Tamezes to have Elwell testify again © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80 to create a bill of exceptions. 4 The court signed an order excluding the causation portion of Elwell's testimony from II. Elwell's Bill of Exceptions Testimony being considered as evidence at any trial or hearing because it was not sufficiently reliable. Mack's motion for summary [1] Mack argues that the court of appeals erred by judgment was granted. considering testimony admitted only for the bill when it reviewed the trial court's exclusion of Elwell's causation 4 An offer of proof is sometimes referred to as a bill of testimony. The Tamezes claim that whether Elwell's bill of exceptions. See TEX.R. EVID. 103(a)(2); TEX.R.APP. exceptions testimony is considered is not relevant because P. 33 (comment to 1997 change). As the court of appeals his bill testimony added nothing to his Robinson hearing and the parties refer to the offer of proof in this case as testimony. Further, in their brief and at oral argument the a bill of exceptions, we will, also. Tamezes disclaim having urged in the court of appeals that The court of appeals reversed the summary judgment, the trial court erred in (1) holding a Robinson hearing, (2) the concluding that the trial court abused its discretion manner in which the hearing was conducted, (3) the timing of the hearing, or (4) denying their motion for reconsideration. in excluding Elwell's causation testimony, 5 and also Our review of their briefs in the court of appeals confirms the concluding that Elwell's testimony provided some evidence Tamezes' position. They do not contend here either that the of causation. The court of appeals' opinion indicates that in bill of exceptions testimony was improperly excluded or that reaching its decision it considered Elwell's testimony from the trial court erred in denying their motion to reconsider. both the Robinson hearing and the bill of exceptions. See 100 S.W.3d 549, 556, 559, 561. The purpose of a bill of exceptions is to allow a party to make a record for appellate review of matters that do not otherwise 5 After Elwell's expert testimony was excluded by the appear in the record, such as evidence that was excluded. trial court, the Tamezes obtained testimony from another TEX. R. APP. P. 33.2; TEX. R. EVID. 103(a)(2); see also expert witness, Douglas Holmes. Mack moved to In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998). The exclude Holmes's testimony, and the trial court orally court of appeals' opinion indicates that it considered Elwell's granted the motion. The court of appeals upheld the bill of exceptions testimony in evaluating the admissibility exclusion of Holmes's testimony. 100 S.W.3d 549, 559. of his opinions even though the trial court did not. See 100 The Tamezes do not challenge the court of appeals' ruling as to Holmes. S.W.3d at 556, 559. As one example, the court of appeals referenced Elwell's opinion that at least one of the tractor's Mack urges that the trial court correctly excluded Elwell's side fuel tanks became displaced during the rollover and testimony on causation, did not abuse its discretion in separated the balance line connecting the two fuel tanks. Id. refusing to reconsider that ruling, and properly granted at 557. The court pointed to Elwell's testimony interpreting summary judgment because the Tamezes presented no photographic evidence of steel straps which held the tanks as evidence of causation. Mack asserts, among other matters, support for his opinion. Id. The referenced testimony as to that the court of appeals erred by (1) considering Elwell's Elwell's opinion and interpretation of photographic evidence causation testimony from both the Robinson hearing and was given as part of his bill of exceptions testimony, but he the bill of exceptions; (2) reversing the trial court's ruling did not give similar testimony during the Robinson hearing. as to admissibility of Elwell's causation testimony; and (3) reversing the summary judgment. [2] Except for fundamental error, appellate courts are not authorized to consider issues not properly raised by the We conclude that the trial court did not abuse its discretion parties. See In the Interest of B.L.D., 113 S.W.3d 340, in excluding Elwell's testimony on causation and that the 350–52 (Tex.2003). We have described fundamental error court *577 of appeals erred in considering testimony from as those instances in which error directly and adversely the bill of exceptions in evaluating the trial court's exclusion affects the interest of the public generally, as that interest of Elwell's causation testimony. We further conclude that is declared by the statutes or Constitution of our State, or the Tamezes presented no summary judgment evidence of instances in which the record affirmatively and conclusively causation and summary judgment was properly granted. shows that the court rendering the judgment was without jurisdiction of the subject matter. See McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80 The court of appeals did not classify the trial court's refusal opinion proffered.’ ” Gammill, 972 S.W.2d at 726 (quoting to allow the Tamezes to present further evidence and to then Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, reconsider its ruling to exclude Elwell's causation testimony 139 L.Ed.2d 508 (1997)). as fundamental error, and neither do we. The court of appeals erred in considering Elwell's causation testimony from the 6 Id. (identifying the following considerations regarding bill of exceptions without having first determined, pursuant reliability of scientific testimony: (1) the extent to to properly assigned error, that the trial court erred in refusing which the theory has been or can be tested; (2) the to admit the testimony and reconsider its decision to exclude extent to which the technique relies upon the subjective Elwell's causation opinions. Under the record and issues interpretation of the expert; (3) whether the theory presented to us, we may not consider Elwell's testimony has been subjected to peer review and/or publication; from the bill of exceptions in determining whether the trial (4) the technique's potential rate of error; (5) whether court erred in excluding Elwell's causation *578 testimony. the underlying theory or technique has been generally See Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 n. 1 accepted as valid by the relevant scientific community; and (6) the non-judicial uses that have been made of the (Tex.2004). theory or technique). [6] [7] [8] [9] A trial court has broad discretion in determining whether expert testimony is admissible. Zwahr, III. Reliability of Elwell's Testimony 88 S.W.3d at 629. Its ruling will be reversed only if that discretion is abused. K–Mart Corp. v. Honeycutt, 24 S.W.3d A. Standard of Review 357, 360 (Tex.2000). Because the party sponsoring the expert bears the burden of showing that the expert's testimony is [3] [4] [5] An expert witness may testify regarding admissible, the burden of presenting understandable evidence “scientific, technical, or other specialized” matters if the that will persuade the trial court is on the presenting party. See expert is qualified and if the expert's opinion is relevant and Robinson, 923 S.W.2d at 557. When an expert's “processes” based on a reliable foundation. TEX. R. EVID. 702; Helena or “methodologies” are obscured or concealed by testimony Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); that is excessively internally contradictory, non-responsive or Robinson, 923 S.W.2d at 556. In determining whether evasive, a trial court will not have abused its discretion in expert testimony is reliable, a court should examine “the determining that the expert's testimony is not admissible. See principles, research, and methodology underlying an expert's GMC v. Iracheta, 161 S.W.3d 462, 470–72 (Tex.2005). conclusions.” Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.2002). When the testimony involves scientific knowledge, the expert's conclusions must be “grounded ‘in the methods and procedures of science.’ ” Robinson, B. Reliability Factors 923 S.W.2d at 557 (quoting Daubert v. Merrell Dow The court of appeals noted that Elwell's testimony largely Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 applied his knowledge, training, and experience to the L.Ed.2d 469 (1993)). Otherwise, the testimony is “no more underlying data and that his methodology was not easily than ‘subjective belief or unsupported speculation.’ ” Id. tested by objective criteria such as identifiable scientific (quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786). We formulas. The court of appeals concluded that under such have identified several non-exclusive factors that trial courts circumstances *579 the reliability of Elwell's opinion is not should consider when determining the reliability of expert properly measured by a Robinson-factor analysis, but that the testimony involving scientific knowledge. 6 We recognize “analytical gap” test should be applied. 100 S.W.3d at 555– that these factors may not apply when testimony is not 56. scientific, but, rather, involves technical or other specialized knowledge. Gammill v. Jack Williams Chevrolet, 972 S.W.2d Mack argues that the court of appeals' analysis is flawed. 713, 726 (Tex.1998). Even then, however, there must be some Mack urges that Elwell's inability to demonstrate at least one basis for the opinion to show its reliability. Id. An expert's of the Robinson factors, coupled with his inability to eliminate bare opinion will not suffice. Merrell Dow Pharms., Inc. v. the crude oil tanker as the source of the fire, rendered Elwell's Havner, 953 S.W.2d 706, 711 (Tex.1997). And, there cannot testimony unreliable. The Tamezes, on the other hand, argue be “ ‘too great an analytical gap between the data and the that because Elwell's testimony was based on his training and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80 experience, and not science, application of the analytical gap and determine which factors and evaluation methodology test, as opposed to use of Robinson factors, was appropriate. are most appropriate to apply. For example, in the present They contend that Elwell's opinion was reliable because there case the trial court would have been within its discretion were no analytical gaps in his testimony. See Gammill, 972 to measure the reliability of Elwell's testimony, at least in S.W.2d at 726. part, by considering (1) the extent to which Elwell's theory had been or could be tested; (2) the extent to which his In Gammill we clarified that the list of non-exclusive factors methodology relied upon his subjective interpretation; (3) listed in Robinson may not be applicable when assessing the methodology's potential rate *580 of error; (4) whether certain kinds of expert testimony. 972 S.W.2d at 720. We the underlying theory or methodology has been generally held that Robinson factors did not apply to the mechanical accepted as valid by the accident reconstruction and post- engineer expert under consideration in Gammill, even though collision fire investigation community; and (5) the non- his claimed expertise was scientific in nature. Id. at 727. In so judicial uses that have been made of his methodology. These holding, however, we did not mean to imply that a trial court are similar to factors 1, 2, 4, 5 and 6 of those enumerated in should never consider the Robinson factors when evaluating Robinson. But, as we have said above, that is not to imply the reliability of expert testimony that is based on knowledge, that the trial court was precluded from measuring Elwell's training or experience, or that the factors can only be applied methodology by Gammill's analytical gap analysis. when evaluating scientific expert testimony. We recognized that the criteria for assessing reliability must vary depending on the nature of the evidence. Id. at 726. C. Elwell's Causation Testimony [10] The United States Supreme Court has noted that it [12] At the Robinson hearing, Elwell testified that the fuel is not possible to “rule out, nor rule in, for all cases and and battery system on the tractor were designed improperly, for all time the applicability of the factors mentioned in and suggested safer designs. He criticized the placement of Daubert.” Kumho Tire v. Carmichael, 526 U.S. 137, 150, the fuel tanks and also of the batteries' 7 proximity to the fuel 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Nor can the Court tanks. He criticized certain parts of the fuel system such as the “now do so for subsets of cases categorized by category crossover or “balance line” hose between the two fuel tanks of expert or by kind of evidence,” as “[t]oo much depends and the spigots by which the hose was attached to each of upon the particular circumstances of the particular case at the tanks. He referenced a particular report, which was not issue.” Id. In Robinson we likewise explained that the factors introduced, which he asserted supported his design critiques mentioned do not constitute an exclusive list and that the trial and his suggested safer designs. court's gatekeeping inquiry will differ with each particular case depending on the “[t]he factors a trial court will 7 The record is not clear whether the tractor had one battery find helpful in determining whether the underlying theories or two. and techniques ... are scientifically reliable.” Robinson, 923 S.W.2d at 557. Thus, a trial court should consider the factors Elwell's analysis and conclusion that the fire began with mentioned in Robinson when doing so will be helpful in the fuel system and the battery system were based on determining reliability of an expert's testimony, regardless of the “fire triangle” theory. He explained that under the fire whether the testimony is scientific in nature or experience- triangle theory, a post-collision fuel-fed fire such as the one based. See Kumho Tire, 526 U.S. at 139, 119 S.Ct. 1167; under consideration must be analyzed with an eye toward Gammill, 972 S.W.2d at 726. the ignition, fuel, and oxygen sources that were available. Because the air provided oxygen, his analysis centered on the [11] In determining reliability, the trial court “should other parts required to complete the triangle, “the source of undertake a rigorous examination of the facts on which the fluids that could be ignited and what would it take to ignite expert relies, the method by which the expert draws an those fluids and fuel, of course, is the primary suspect, either opinion from those facts, and how the expert applies the facts fuel or crude oil in this particular case.” and methods to the case at hand.” See Amorgianos v. Amtrak, 303 F.3d 256, 267 (2d Cir.2002). A significant part of the He did not testify that he inspected the remnants of the trial court's gatekeeper function is to evaluate the expert's burned tractor and trailer or that he performed or reviewed qualifications, listen to the testimony, view the evidence, any accident reconstruction analysis as to how the rollover © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80 occurred and how different parts of the vehicle would have ignition or flash points of the crude and diesel fuel. He did not been affected or harmed thereby. His Robinson hearing address any analysis or process by which he concluded that testimony did not identify a particular alleged defect of the some part of a trailer of crude oil would continue to burn for tractor's fuel system that he concluded was the source of a several minutes only if it was ignited by, rather than being the diesel fuel leak that initiated the fire. ignitor of, diesel fuel from the tractor's fuel system. On cross-examination he testified that he had read and relied In sum, Elwell did not testify at the Robinson hearing to on “over 5,000” studies on the subject of the causes of post- a methodology by which he reached the conclusions as collision fuel-fed fires. He did not specify any studies that to the fire having been caused by defects in the tractor's supported his conclusion as to the specifics involved in the fuel and battery systems. In order for Elwell's testimony on accident, and none were offered as evidence for the trial court causation to be reliable, he was required to present some to consider in evaluating his testimony. methodology that reliably supported his opinions that the “fuel” and “ignition” parts of the fire triangle were supplied, In coming to his conclusion that the fire began with the fuel respectively, by the tractor's alleged fuel system defects and system and battery system of the tractor, Elwell asserted that battery system. He did not do so. The mere fact that the fuel he relied on several specific factors and facts. Each of the system had a design that could cause the hoses to separate is factors and facts he enumerated supported conclusions that not evidence that the hoses separated in this case. Tamez was burned by diesel and that the diesel ignited so quickly that Tamez could not escape. Elwell's testimony did no more than set out “factors” and “facts” which were consistent with his opinions, then Even assuming that what Elwell relied on and classified as conclude that the fire began with diesel fuel from the tractor. “factors” and “facts” were true, however, which Mack denies, The reliability inquiry as to expert testimony does not ask the factors and facts are merely consistent with diesel fuel whether the expert's conclusions appear to be correct; it asks having been released during the rollover and Tamez having whether the methodology and analysis used to reach those been burned by part of the fire fed by the tractor's diesel fuel. conclusions is reliable. Kerr–McGee Corp. v. Helton, 133 They are not probative evidence that diesel fuel was released S.W.3d 245, 254 (Tex.2004). The trial court was not required because of one of the asserted defects in the fuel system or to accept his opinions at face value just because Elwell was that it was ignited by the battery system. He did not testify experienced in examining post-collision fuel-fed fires. See to having analyzed, tested, or investigated the characteristics Gammill, 972 S.W.2d at 726 (holding that a court should not of batteries like the battery in the wrecked tractor to support admit opinion evidence which is connected to existing data his *581 opinion that the battery system was involved in only by the ipse dixit of the expert). causing the fire. He failed to set out any process by which he excluded other sources for ignition of the diesel fuel such We conclude that the trial court did not abuse its discretion as mechanical sparks which could be generated when parts when it excluded Elwell's testimony on causation. The court of a truck make contact with the pavement, or ignition of the of appeals erred when it determined otherwise. cargo fuel which in turn could have ignited the diesel fuel. See Gammill, 972 S.W.2d at 728; see also Robinson, 923 S.W.2d at 559 (noting that an expert who is trying to find a cause IV. The Summary Judgment of something should carefully consider alternative causes). For example, when Elwell was asked during the Robinson Mack moved for summary judgment on multiple grounds, hearing why he concluded that the fire originated with the including the ground that there was no evidence Mack's fuel fuel and battery systems instead of with the crude oil cargo, system design was a producing or proximate cause of Tamez's his response was that “if [crude oil] remains to be burned, injuries. The Tamezes contend that even without Elwell's that after five or ten or fifteen minutes, then that's not the testimony as to causation, they presented sufficient evidence fuel that started the fire.” He did not explain any investigation to survive summary judgment. or research that supported such a conclusion. He did not elaborate on the amount of crude that was in the trailer when the wreck occurred, calculate the amount of time it would take the cargo to burn, or discuss or compare the relative ease of A. Standard of Review © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80 A summary judgment motion pursuant to TEX. R. CIV. P. See Iracheta, 161 S.W.3d at 470 (holding that the possibility 166a(i) is essentially a motion for a pretrial directed verdict. that the fire occurred in the manner the plaintiff suggested is See *582 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d not enough to support the jury's findings); Nissan Motor Co. 706, 711 (Tex.1997). Once such a motion is filed, the burden v. Armstrong, 145 S.W.3d 131, 137 (Tex.2004). shifts to the nonmoving party to present evidence raising an issue of material fact as to the elements specified in The Tamezes point to several parts of their summary the motion. Id.; W. Invs., Inc. v. Urena, 162 S.W.3d 547, judgment evidence that they say are sufficient, individually 550 (Tex.2005). We review the evidence presented by the or collectively, to defeat summary judgment: (1) an accident motion and response in the light most favorable to the party witness's “personal assumption,” based on his averred against whom the summary judgment was rendered, crediting experience with and ability to recognize the smell of diesel evidence favorable to that party if reasonable jurors could, fuel, that Tamez was burned by diesel fuel because Tamez and disregarding contrary evidence unless reasonable jurors was coated with a shiny, oily substance and did not smell like could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 crude oil; (2) a notation by Mack's accident reconstruction (Tex.2005); Johnson v. Brewer & Pritchard, P. C., 73 S.W.3d expert noting a diesel fuel spill on the road; (3) a statement by 193, 208 (Tex.2002). Elwell that the design of the system was such that if there was any significant dislodgement of the fuel tanks, the fuel line would separate; 8 (4) a statement by Mack's expert witness B. Causation that it was possible that a battery cable found in the tractor had arced and ignited the fire, although *583 the witness Producing or proximate cause is an element of all ultimately concluded that the crude-oil cargo caused the fire; of the Tamezes' claims, which included negligence, and (5) an eyewitness's statement implying that it took the fire misrepresentation, breach of warranty, and design, a short period of time to reach Tamez, who exited and crawled manufacturing, and marketing defects. Causation-in-fact is away from the tractor after the accident. common to both proximate and producing cause, including the requirement that the defendant's conduct or product be a 8 Elwell's testimony on design defect, as opposed to his substantial factor in bringing about the injuries in question. testimony on causation, was not excluded. See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 [14] [15] [16] Proof other than expert testimony (Tex.1995). will constitute some evidence of causation only when a layperson's general experience and common understanding All the Tamezes' theories regarding the fire's cause would enable the layperson to determine from the evidence, were based on allegations that the tractor's fuel system with reasonable probability, the causal relationship between was defectively designed and manufactured so as to be the event and the condition. Expert testimony is required unreasonably prone to fail and release flammable fluids in when an issue involves matters beyond jurors' common an environment conducive to ignition and fire; that such understanding. See Alexander v. Turtur & Assocs., 146 defects caused the release of diesel fuel; and that a defectively S.W.3d 113, 119–20 (Tex.2004). Whether expert testimony designed and placed ignition source then caused ignition of is necessary to prove a matter or theory is a question of law. the released diesel. See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 89 (Tex.2004). In Fulgham we held that expert testimony [13] To survive summary judgment on their theory that was necessary to establish the standard of care for connecting a defect in the tractor's fuel system was the cause of refrigerated trailers to tractors and for the frequency and type the fire, the Tamezes were required to present more than of inspection and maintenance of such connectors, because evidence of a fuel leak. See Ford Motor Co. v. Ridgway, those matters were not within the general experience and 135 S.W.3d 598, 600–01 (Tex.2004) (affirming summary common understanding of laypersons. Id. at 91; See also judgment because the plaintiffs' evidence “establishe[d] only Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.- that a fire occurred, and [the plaintiffs' expert] could say no Amarillo 1999, pet. denied) (holding that performance of more than that he ‘suspects' the electrical system caused the mechanical work on turbine aircraft engines is not within the fire”). They had to present evidence that (1) the diesel fuel experience of a layperson). leaked because of one or more of the alleged defects, and (2) the leak caused by the defect was the ignition point for the fire. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80 cable could possibly have ignited the fire is not evidence that [17] A lay juror's general experience and common it probably did so. The expert who provided this testimony knowledge do not extend to whether design defects such as could not determine whether the cable arced before the fire those alleged in this case caused releases of diesel fuel during was ignited or as it was being burned by an otherwise-ignited a rollover accident. See Nissan Motor Co., 145 S.W.3d at fire. As proof of what caused the fire, such evidence is 137 (stating that we have consistently required competent speculative and is insufficient to prevent summary judgment. expert testimony and objective proof that a defect caused the See Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 condition complained of). Nor would a lay juror's general (Tex.1998). experience and common knowledge extend to determining which of the fire triangle's fuel sources, diesel from the *584 [19] The plaintiffs also rely on circumstantial tractor or crude from the tanker, would have first ignited, evidence suggesting that the fire quickly reached Tamez. That or the source for the first ignition. That part of Elwell's evidence is consistent with the Tamezes' theory that the fire testimony that was properly before the trial court and the originated with fuel from the tractor's diesel fuel system. But, testimony of other experts as to the amount of time they such evidence does not make it more likely than not that the spent in studying, investigating, and working in the field of battery or some other allegedly improperly located ignition post-collision, fuel-fed fires demonstrated the intricacies of source ignited diesel from the tractor, as opposed to other such subject matter. Issues such as those regarding the fire's possible sources of ignition such as the cargo of crude oil. cause(s) present matters beyond the general understanding Accordingly, the circumstantial evidence is not sufficient to and common knowledge of lay jurors. Proof of causation in prevent summary judgment. Id. this case also required expert testimony. The summary judgment evidence presented by the Tamezes did not contain proof that any of the possible sources of diesel V. Conclusion fuel was more likely than any other, or more likely than the crude oil cargo, to have been the source of liquids that first The plaintiffs produced no evidence that the alleged defects caught fire. Accordingly, there is no evidence that the source of the Mack tractor were a cause-in-fact of injuries to Abram was one of the alleged fuel system defects. Kindred v. Con/ Tamez. Because causation is a required element of each of Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). the Tamezes' claims, the trial court properly granted summary judgment. Accordingly, we reverse the court of appeals' [18] The Tamezes also alleged that several ignition sources judgment and render judgment that the plaintiffs take nothing. were located in areas likely to contain diesel that would be released in a wreck. The Tamezes point to expert testimony All Citations that an arced battery cable found in the tractor could possibly have ignited the fire. But, testimony that the battery or its 206 S.W.3d 572, 50 Tex. Sup. Ct. J. 80 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. 10 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) a medical malpractice action under an abuse of discretion standard. 343 S.W.3d 571 Court of Appeals of Texas, Cases that cite this headnote Beaumont. RENAISSANCE HEALTHCARE SYSTEMS, [2] Appeal and Error INC., Renaissance Hospital, Inc., and Abuse of discretion Houston Community Hospital, Inc. d/ A trial court abuses its discretion if it acts in b/a Renaissance Hospital, Appellants, an arbitrary or unreasonable manner without v. reference to any guiding rules or principles. Dianne SWAN, individually and as Representative Cases that cite this headnote of the Estate of Jennifer Renee Abshire, and for and on behalf of any Wrongful Death Beneficiaries of Jennifer Renee Abshire, Jason [3] Appeal and Error Abuse of discretion Holst, Individually, and David “Andrew” Maxey, as next Friend of Trista Maxey, Appellees. A trial court abuses its discretion if it fails to analyze or apply the law correctly. No. 09–10–00433–CV. | Submitted Cases that cite this headnote March 3, 2011. | Decided June 30, 2011. Synopsis [4] Health Background: Deceased patient's mother, individually and as Affidavits of merit or meritorious defense; representative of patient's estate, and other plaintiffs brought a expert affidavits medical malpractice action against hospital and several other When determining whether the expert report in medical defendants. Defendants subsequently filed a motion a medical malpractice action represents a good- to dismiss, challenging the sufficiency of the plaintiffs' expert faith effort to comply with the definition of an reports. The 60th District Court, Jefferson County, Gary expert report in applicable statute, the trial court's Sanderson, J., denied the motion, and defendants appealed. inquiry is limited to the four corners of the report. V.T.C.A., Civil Practice & Remedies Code § 74.351(a), (r)(6). [Holding:] The Court of Appeals, Steve McKeithen, C.J., held that plaintiffs' expert reports, considered together, Cases that cite this headnote discussed the standards of care, breach, and causation with sufficient specificity as to each of the defendants to inform [5] Health them of the conduct plaintiffs called into question. Affidavits of merit or meritorious defense; expert affidavits Affirmed. To constitute a “good-faith effort,” the expert report in a medical malpractice action must discuss the standard of care, breach, and causation with sufficient specificity to inform the West Headnotes (14) defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit. [1] Appeal and Error V.T.C.A., Civil Practice & Remedies Code § Rulings on Motions Relating to Pleadings 74.351(a), (r)(6). Appellate court reviews a trial court's decision regarding the adequacy of an expert report in Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) not be addressed by appellate court on appeal [6] Health following trial court's denial of defendants' Affidavits of merit or meritorious defense; motion to dismiss, challenging the sufficiency expert affidavits of plaintiffs' expert reports. V.T.C.A., Civil When a plaintiff in a medical malpractice action Practice & Remedies Code § 74.351(a), (r)(6). sues more than one defendant, the expert report or reports must set forth the standard of care Cases that cite this headnote applicable to each defendant and explain the causal relationship between each defendant's [10] Joint Adventures individual acts and the injury. V.T.C.A., Civil Rights and Liabilities of Parties as to Third Practice & Remedies Code § 74.351(a), (r)(6). Persons Cases that cite this headnote The theory of joint enterprise imputes liability to one who, although he did no wrong, is so closely connected to the wrongdoer that it justifies the [7] Health imposition of vicarious liability. Affidavits of merit or meritorious defense; expert affidavits Cases that cite this headnote An expert report in a medical malpractice action need not marshal all of the plaintiff's [11] Health proof; however, a report that omits any of the Hospitals or Clinics elements required by statute does not constitute Health a good-faith effort to comply with the statutory Affidavits of merit or meritorious defense; definition of an expert report. V.T.C.A., Civil expert affidavits Practice & Remedies Code § 74.351(a), (r)(6). When a medical malpractice petition asserts Cases that cite this headnote theories of liability that are purely vicarious, the conduct being called into question involves legal principles, and is not measured by a medical [8] Health standard of care, since hospital entities cannot Affidavits of merit or meritorious defense; practice medicine; therefore, an expert report in expert affidavits such a case that adequately implicates the actions With regard to determining the adequacy of an of the entity's agents or employees is sufficient. expert report in a medical malpractice action, the V.T.C.A., Civil Practice & Remedies Code § expert must explain the basis of his statements to 74.351(a), (r)(6). link his conclusions to the facts. V.T.C.A., Civil Practice & Remedies Code § 74.351(a), (r)(6). 3 Cases that cite this headnote Cases that cite this headnote [12] Health Affidavits of merit or meritorious defense; [9] Appeal and Error expert affidavits On Separate Appeal from Interlocutory Although the expert report in a medical Judgment or Order malpractice action must discuss the standard Several of defendants' claims in medical of care, breach, and causation with sufficient malpractice action, including that the peer specificity to inform the defendant of the conduct review privilege immunized them from suit, that the plaintiff has called into question and to respondeat superior did not apply, and that the provide a basis for the trial court to conclude plaintiffs' expert reports stated an inappropriate that the claims have merit, each specific factual standard of care for the nurses, were issues for allegation of negligence does not need be either trial or summary judgment, and would © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) discussed in the expert report. V.T.C.A., Civil Practice & Remedies Code § 74.351(a), (r)(6). 1 Cases that cite this headnote 1 Cases that cite this headnote [13] Evidence Attorneys and Law Firms Due care and proper conduct in general *573 Gordon M. Carver, III, Heather M. Morlang, Watt Health Beckworth Thompson & Henneman, L.L.P., Houston, for Affidavits of merit or meritorious defense; appellants. expert affidavits Physician's lack of involvement in hospital Brian D. Sutton, Joseph N. Jannise, Jr., Stephanie H. Harris, quality assurance committees since 1997 did not Sutton & Jacobs, L.L.P., Beaumont, for appellees. render him unable to qualify as an expert witness Before McKEITHEN, C.J., KREGER and HORTON, JJ. and offer an expert report in medical malpractice action. V.T.C.A., Civil Practice & Remedies Code § 74.403(a). *574 OPINION Cases that cite this headnote STEVE McKEITHEN, Chief Justice. [14] Health This is an accelerated appeal from the trial court's order Affidavits of merit or meritorious defense; denying a motion to dismiss filed pursuant to section 74.351 expert affidavits of the Texas Civil Practice and Remedies Code. See Tex. Plaintiffs' expert reports in medical malpractice Civ. Prac. & Rem.Code Ann. § 74.351 (West 2011); see also action, considered together, discussed the id. § 51.014(a)(9) (West 2008). We affirm the trial court's standards of care, breach, and causation with judgment. sufficient specificity as to each of the defendants to inform them of the conduct plaintiffs called into question and to provide a basis for the trial BACKGROUND court to conclude that the claims had merit; physician, board certified in anesthesiology and Dianne Swan, individually and as representative of the internal medicine, explained that the standard of estate of Jennifer Renee Abshire, and for and on behalf care required physicians and nursing personnel of any wrongful death beneficiaries of Abshire; Jason to recognize the signs of hemorrhage, and that Holst, individually; and David “Andrew” Maxey, as if the nurses had promptly recognized deceased next friend of Trista Maxey, (collectively “appellees”) patient's symptoms, summoned a physician to brought a healthcare liability claim against Renaissance patient's bedside, and instituted the chain of Healthcare Systems, Inc., Renaissance Hospital, Inc., and command, patient would “more likely than not Houston Community Hospital, Inc. d/b/a Renaissance have been appropriately treated and her life Hospital (collectively “appellants”), and other defendants. 1 saved,” and second physician indicated that According to appellees, Dr. John Q.A. Webb, who was defendants had a duty to follow applicable treating Abshire for a herniated disc, referred Abshire to Dr. standards in credentialing physicians, and that if Merrimon Baker, an orthopedic surgeon. Appellees contend they had denied or revoked orthopedic surgeon's that Webb was “acting as an agent and/or employee of and/ surgical credentials, in all reasonable medical or on behalf of” one or more of the hospital defendants. probability, a competent surgeon would have Appellees assert that Baker performed a bilateral lumbar operated on patient, patient's artery would not laminectomy and diskectomy on Abshire at Renaissance have been severed, and she would not have died. Hospital, and during the surgery, Baker transected Abshire's V.T.C.A., Civil Practice & Remedies Code § “right internal iliac artery, failed to recognize that he had 74.351(a), (r)(6). done so, and thus failed to repair the artery prior to closing.” © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) Abshire suffered massive internal hemorrhaging, which led appellants' objections and denied appellants' motions to to cardiac arrest and her death. dismiss. Appellants then filed this appeal, in which they present three issues for our review. 1 In an earlier appeal, we addressed the adequacy of the expert reports as to defendants Beaumont Spine & Sports 2 “FACHE” stands for “Fellow of the American College Medicine Clinic, Inc., individually and d/b/a Beaumont of Healthcare Executives.” Spine Pain & Sports Medicine, Beaumont Spine & Sports Medicine, Dr. John Q.A. Webb, John Q.A. Webb, Jr., M.D., P.A., individually and d/b/a Beaumont Medical THE EXPERT REPORTS Clinic, and Beaumont Medical Clinic. Beaumont Spine Pain & Sports Medicine Clinic, Inc. v. Swan, No. 09– 10–00347–CV, 2011 WL 379168 (Tex.App.-Beaumont Dr. Emilio B. Lobato Feb. 3, 2011, pet. denied). In his initial report, Lobato, who is board certified in Appellees asserted causes of action against appellants for anesthesiology and internal medicine, explained that Abshire malicious credentialing of Baker, negligence, and gross was admitted to “Renaissance Hospital Houston” on August negligence. According to appellees' petition, because Webb 11, 2006, to undergo a lumbar laminectomy and bilateral was acting as the “agent, employee, member, officer[,] and/ diskectomy of L5–S1. Lobato noted that during surgery, or director” of Beaumont Spine Pain & Sports Medicine Abshire's blood pressure decreased to 80/50, and when Clinic, Inc. (“Beaumont Spine”), and appellants allegedly Abshire was moved to the PACU (post-anesthesia care unit) owned and operated Beaumont Spine, appellees' allegations after surgery, her blood pressure was 88/31, and her heart rate of negligence against Webb also applied to appellants under was 121. According to Lobato, “[t]he PACU record reveals the doctrine of respondeat superior. According to appellees, a pattern of persistent hypotension since her admission with appellants failed to maintain an appropriate standard of values as low as 50 mm Hg systolic. This was accompanied care by permitting physicians whom appellants knew to be by extreme tachycardia eventually followed by terminal incompetent and unqualified to operate on Abshire. bradycardia.” Lobato opined as follows: Appellees also contended that, by permitting nurses and In my professional opinion, and with a great degree other staff members who lacked appropriate training and of medical certainty, Ms. Abshire suffered from severe experience to care for Abshire, appellants failed to carefully hemorrhagic shock following a surgical transection caused evaluate and select competent nurses and other staff members, by Dr. Baker of her right iliac artery which occurred adequately train nurses and other staff members, adequately during her lumbar laminectomy. Ms. Abshire continued supervise the treatment provided by nurses and other staff to hemorrhage in the PACU causing hypovolemic shock members, and maintain an appropriate standard of care. In which went inappropriately treated, thus, leading to addition, appellees alleged that the various defendants were her demise. In other words, Ms. Abshire's death was involved in a joint enterprise “for monetary profit via the directly caused by Dr. Baker's trans[e]ction of the right delivery of medical services” to Abshire. internal iliac artery combined with the failure of Dr. Baker, Dr. McHargue [Abshire's anesthesiologist] and the Appellees filed expert reports authored by Dr. Emilio B. PACU nursing staff to diagnose and [treat] the resulting Lobato and Dr. J. Michael Simpson. Appellants objected to hemorrhage and hypovolemic shock. the reports and filed motions to dismiss. See *575 Tex. Civ. Prac. & Rem.Code Ann. § 74.351(l ). Appellees filed Ms. Abshire's death was a direct result of the negligent a supplemental report by Lobato after appellants filed their actions of the surgeon ..., the anesthesiologist ... and the objections. The trial court sustained appellants' objections PACU nurses from Renaissance Hospital in Houston[,] and granted appellees a thirty-day extension to file additional Texas. The untimely diagnosed and untreated severe reports. Appellees subsequently filed additional reports from hemorrhage suffered by Ms. Abshire was a direct and proximate cause of her death. The lack of timely Dr. Keith E. Miller and Arthur S. Shorr, FACHE, 2 as identification and appropriate treatment by the above care well as a supplemental report from Shorr. After appellants providers was directly responsible for her prolonged state filed objections and motions to dismiss concerning the of shock, leading to her untimely death. additional and supplemental reports, the trial court overruled © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) According to Lobato, Abshire “was clearly manifesting that the standard of care “requires that a qualified PACU enough signs of hypovolemic shock that a medical student nurse recognize signs and symptoms of hypovolemia such should have diagnosed it.” Lobato stated that Abshire as tachycardia and progressive hypotension (assessment exhibited symptoms of “a class IV hemorrhagic shock and nursing diagnosis).” Lobato explained that PACU which is clinically associated with more than 40% blood nurses should also know that treating hypovolemia requires loss[,]” and that a class IV hemorrhage is “immediately life “aggressive fluid resuscitation and frequent evaluation of threatening.” Lobato explained that the symptoms of class IV the response to treatment[.]” In addition, Lobato opined as hemorrhage include “marked tachycardia, decreased systolic follows: blood pressure, narrowed pulse pressure (or immeasurable diastolic pressure), markedly decreased (or no) urinary The standard of care also demands that the nursing staff output, depressed mental status (or loss of consciousness), inform the surgeon and the anesthesiologist of severe and cold, pale skin.” hypotension particularly if it is recurring and demand their presence to personally assess. A qualified PACU Lobato opined that “the standard of care requires that nurse also has the obligation to act as the patient's both physicians and nursing *576 personnel recognize the advocate. In the presence of a clinically unstable patient[,] signs and symptoms of progressive and severe hemorrhage.” [a] PACU nurse should have insisted that either Dr. Baker Lobato stated that severe tachycardia without concomitant or Dr. McHargue come to and remain at the bedside. elevation of blood pressure, followed shortly by hypotension, In addition, should the anesthesiologist or neurosurgeon pallor, and obtundation, are the classic signs of hypovolemic fail to institute the right treatment[,] ... the nurse has shock, and the injury must be timely recognized and treated not only the right but the obligation to rapidly institute in a timely fashion because failure to do so will result in a the chain of command. This requires the involvement of fatality. Lobato stated as follows: a qualified supervisor and involves the summoning of another qualified anesthesiologist and surgeon to provide Ms. Abshire exhibited florid signs the appropriate care of the patient. of hypovolemic shock including tachycardia, hypotension, pallor, PACU Nurses at the Hospital caring for Ms. Abshire decrease in mental status and were obligated to work on the patient's behalf, not progressive hypoxemia eventually the physician's. In this case, the blatant neglect by Dr. culminating into pulseless electrical Baker and the mismanagement by Dr. McHargue made activity. The fact that Ms. Abshire the PACU nurses the last resort to prevent her death. displayed flagrant hemorrhagic shock Instead of behaving as patients' advocates, PACU Nurses without appropriate therapy in the limited themselves to record the progression of Ms. eyes of anesthesiologists, orthopaedic Abshire's hemorrhage towards her inexorable death and surgeon, and post anesthesia care to uncritically institute what was clearly suboptimal and unit nurses, is beyond belief. All of incomplete therapy. these health care team members share responsibility for the eventual demise Lobato explained that the PACU nurses failed to recognize that Ms. Abshire suffered. severe and progressive hypovolemia, failed to demand more aggressive fluid resuscitation, failed to demand that a physician be continuously present at Abshire's bedside, and With respect to appellants in particular, Lobato explained failed “to *577 institute the chain of command to provide a that he understood from reviewing the original petition that qualified medical provider to institute the right therapy in a “the Renaissance entities have common ownership, are all timely fashion....” According to Lobato, if the PACU nursing part of the same healthcare system, and/or are all involved staff had taken appropriate measures, “more likely than not, in a joint enterprise for the provision of healthcare to at least one physician caring for Ms. Abshire would have patients such as Ms. Abshire.” Lobato stated, “Therefore, realized that they were dealing with a hemorrhage, ... and once my criticisms of the nursing staff of Renaissance Hospital— that connection had been made, Ms. Abshire more likely than Houston are directed to the remaining Renaissance entities not would have been appropriately treated and her life saved.” as well since they all have related or common ownership Lobato stated that the failure of Baker, McHargue, and the and/or are all involved in a joint enterprise.” Lobato opined PACU nursing staff to follow the standards of care “resulted © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) in the irreversible shock suffered by Ms. Jennifer Abshire and in the PACU, and as it expanded, ultimately her death. Thus, their actions were[,] in reasonable provided easily accessible evidence medical probability[,] the proximate cause of Ms. Abshire's that there was a problem in the area death. Had the standard of care been observed ..., it is my where the surgery was performed. The opinion that her untimely death would have been prevented.” expanding abdomen, when coupled with the clinical picture of the falling In his supplemental report, Lobato stated as follows: blood pressures, should have alerted the nurses of the strong possibility of I am not suggesting ... that nurses hemorrhage.” should be “practicing medicine” or prescribing treatments, but rather, that Lobato also explained in his supplemental report that a they should be performing adequate hospital must “properly train its PACU nursing staff to nursing assessments and nursing recognize hypovolemia in post-surgical patients, to know its diagnoses that they are not only potential causes, and to act quickly and decisively in the face qualified to make but are obligated to of such signs and symptoms....” Lobato also stated as follows: make. In this instance, it is the duty of a PACU nurse to recognize signs and Again, by this I do not mean that symptoms of hypovolemia because the Hospital should have trained its of the likelihood that hypovolemia staff to make medical diagnoses or in a post-surgical patient indicates prescribe treatment, but rather to train hemorrhage, and because of the them to be aware of the signs and possible fatal consequences of such a symptoms of major and potentially hemorrhage. This clearly falls within lethal post-operative complications.... the category of “nursing diagnoses” If the Hospital in this case had and “nursing assessments.” conducted any such training, it was clearly ineffective, as the PACU Lobato further noted a nurse should pay close attention to nurses caring for Ms. Abshire *578 a patient's physical appearance, and Lobato explained that exhibited no signs of recognizing what “the autopsy report notes that upon external examination, was happening to Ms. Abshire, nor did Ms. Abshire's skin color was ‘strikingly pale’ and that they take any of the required actions ... her abdomen was protuberant.” Lobato stated that upon which would have led to a diagnosis reviewing the autopsy photographs of Abshire's abdomen, he of the hemorrhage and hypovolemia in noted that Abshire's abdomen time to treat it and save Ms. Abshire's is so protuberant as to resemble that life. of a woman in late pregnancy. This Lobato explained that if the nurses had recognized Abshire's distension is visible to the naked hypovolemic shock and demanded “the immediate presence eye, even through her hospital gown, of the operating surgeon at the bedside for an immediate and would have been visible to the consultation with a general or vascular surgeon while PACU nurses and anyone else who read[y]ing an operating room for an emergency exploratory happened to glance in the area of laparotomy,” a surgeon would have recognized that Abshire her abdomen. Her abdomen would was suffering from an acute intra-abdominal hemorrhage and not have suddenly swelled to that “taken Ms. Abshire to the operating room immediately in size in the moments before her order to identify the bleeding, clamp and repair the lacerated death; rather, the abdomen protruded vessel, thus effectively stopping the hemorrhage.” Lobato because it was filling with the 4680 opined that although Abshire would have required significant milliliters of blood hemorrhaged from blood transfusions, as well as post-operative care in the the severed artery. The expansion of intensive care unit, “had she been returned to the operating the belly would have occurred during room shortly after her arrival to the PACU, it is very likely the entire course of Ms. Abshire's time © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) (in other words, more likely than not) that she would have have been the surgeon operating on survived.” Ms. Abshire. In all reasonable medical probability, had Dr. Baker, a physician with a well-known reputation for surgical incompetence, not been Ms. Dr. J. Michael Simpson Abshire's surgeon, *579 her right Simpson explained that he is a board-certified orthopedic internal iliac artery would not have surgeon, and he has served in hospital administration, been transected and the transaction left including his present position as medical director of St. undiscovered to cause exsanguination Mary's Spine Center. Simpson stated that, as a result of his and death. experience as a practicing orthopedic surgeon and in hospital administration, he has “knowledge of the standards of care Simpson also stated that based upon the documents he applicable to the credentialing of physicians, and in particular had reviewed, Webb's employer, Beaumont Spine Pain & surgeons, to practice in hospitals[,]” as well as the standards Sports Medicine Clinic, Inc. was owned and operated by of care applicable to a physician who is referring a patient to the various Renaissance Hospital entities, “thus making Dr. another physician. Simpson explained that Webb's records do Webb an employee” of the Renaissance entities. Accordingly, not indicate how Webb arranged Abshire's referral to Baker Simpson explicitly incorporated by reference his criticisms or whether Webb investigated Baker's competence prior to of Webb as to the Renaissance entities. Simpson also making the referral. Simpson stated, “[A]ccording to public explained that his “criticisms of the nursing staff and documents attached to Plaintiff's Original Petition, which I hospital administration responsible for credentialing Dr. have reviewed, by the time Dr. Webb referred Ms. Abshire to Baker at Renaissance Hospital—Houston, are directed to the Dr. Baker, Dr. Baker had a well-known public history, both remaining Renaissance entities as well since they all have in the medical community and in the community at large, for related or common ownership and/or are all involved in a joint incompetence and drug use.” enterprise.” Simpson explained that two appellate court opinions, both of According to Simpson, Renaissance Hospital had a duty which were published before Webb referred Abshire to Baker, to follow JCAH (Joint Commission on Accreditation of set forth Baker's history, and that Simpson had served as an Hospitals) 3 standards in credentialing physicians, and JCAH expert witness in one of the cases. According to Simpson, standards required Baker to disclose his record of malpractice one of the appellate opinions involved a patient who suffered records and settlements. Simpson also noted that because an injury that was quite similar to Abshire's injury. Simpson the appellate opinions and the state board complaints were also noted that at the time of the referral, the Texas Board of publicly accessible, “a reasonably prudent credentialing Medical Examiners (“TBME”) had filed several complaints committee should have limited, denied[,] or revoked Dr. against Baker. Simpson stated that information contained in Baker's privileges.” Simpson stated that Renaissance Hospital the TBME complaints was publicly accessible. failed to follow the proper credentialing process because Baker's malpractice history “would have been well known According to Simpson, the standard of care required Webb in medical and hospital administration circles in the Houston to “have a basic knowledge of the skills and professional area. Had the Hospital done even a bare minimum of reputation of the physician to whom the patient is being investigation of Dr. Baker's malpractice history, it should referred.” Simpson explained that the standard of care also have never granted privileges to Dr. Baker.” According to required a referring physician to “refrain from referring a Simpson, appellants could have decided to deny or revoke patient to a physician with a well-documented history of drug Baker's credentials use, malpractice, and repeated complaints by the board of medical examiners.” Simpson opined that Webb's referral of 3 See Mitchell v. Amarillo Hosp. Dist., 855 S.W.2d 857, Abshire to Baker 867 (Tex.App.-Amarillo 1993, writ denied) (discussing the meaning of the acronym “JCAH”). was the direct cause of Dr. Baker's performing surgery on Ms. Abshire, absent which, Dr. Baker would not based solely on information that was in the public domain at the time, or at the very least, the sheer volume of © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) this information available to the public, and well-known Abshire more likely than not would have been appropriately throughout the medical community, should have alerted treated and her life saved.” the Hospital to do a thorough investigation of Dr. Baker and his malpractice history and state board status, which surely would have resulted in any reasonable credentialing Dr. Keith E. Miller committee's denying such privileges. Simpson opined that if the hospital had denied or revoked Miller, a family physician with experience serving on hospital Baker's surgical credentials, in all reasonable medical committees, explained that he is familiar with the standards probability, a competent surgeon would have operated on of care applicable to physicians, nurses, hospitals, and Abshire, Abshire's artery would not have been severed, and emergency departments that treat patients such as Abshire. In Abshire would not have bled to death. addition, Miller explained that he had previously served as a Simpson further explained that the standard of care commissioner of the Texas Medical Board. Miller stated as requires PACU nurses to recognize signs and symptoms of follows: hypovolemia as part of assessment and nursing diagnosis, to insist upon rapid intravenous administration of fluids, According to public documents, and to inform the surgeon and anesthesiologist of severe information available to the public hypotension, “particularly if it is recurring and demand their on the Texas Medical Board website, presence to personally assess.” Simpson explained as follows: and in a newsletter published by the Texas Medical Board which is A qualified PACU nurse also has mailed to every physician in Texas, the obligation to act as the patient's including Dr. Webb, Dr. Baker had advocate. In the presence of a a well-known public history, both in clinically unstable patient[,] [a] PACU the medical community and in the nurse should have insisted that either community at large, for incompetence Dr. Baker or Dr. McHargue come and drug use at the time Dr. Webb to and remain at the bedside. In made the referral of Ms. Abshire. addition, should the anesthesiologist or neurosurgeon fail to institute the Miller noted that when Webb referred Abshire to Baker, right treatment ... the nurse has not Baker was defending several complaints filed by the Texas only the right but the obligation Medical Board. In addition, Miller stated that Baker “had also to rapidly institute the chain of been the subject of a rather notorious court case [,] during command. This requires the *580 which it was reported that Dr. Baker had ... drug problems, involvement of a qualified supervisor mental health problems[,] and erratic behavior, and ... he had and involves the summoning of lost privileges at two hospitals.” another qualified anesthesiologist and surgeon to provide the appropriate care According to Miller, the standard of care required Webb to of the patient. use “reasonable medical judgment and effort in determining the need for a referral and in selecting a competent physician Simpson opined that the hospital's nurses breached the to which [Abshire] could appropriately be referred.” Miller standard of care by failing to (1) recognize severe and stated that all physicians in Texas receive the Texas Medical progressive hypovolemia, (2) demand more aggressive fluid Board newsletter and are expected to be familiar with its resuscitation, (3) demand that a physician be continuously contents, including information about disciplinary actions present at Abshire's bedside, and (4) institute the chain of taken by the board against physicians. Miller also indicated command so that a qualified medical provider could have that the standard of care required that Webb should not have timely instituted the proper treatment. According to Simpson, referred Abshire to Baker “for medical care due to his well-if the PACU nurses had undertaken appropriate measures, known history of drug use, erratic behavior[,] and most of all, “more likely than not, at least one physician caring for Ms. his history of serious adverse patient outcomes.” Abshire would have realized that they were dealing with a hemorrhage, ... and once that connection had been made, Ms. Miller explained that Webb breached the standard of care by referring Abshire to Baker. Miller stated that “[a] © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) reasonable physician practicing according to acceptable standards of medical care would have used reasonable efforts Before granting privileges, the organized medical staff to ascertain the qualifications of physicians to which they evaluates the following: Challenges to any licensure or refer patients....” Miller opined that “[h]ad proper care ... been registration; Voluntary and involuntary relinquishment of given to Ms. Abshire[,] then more likely than not and to a any license or registration; Voluntary and involuntary reasonable degree of medical certainty and probability, Ms. termination of medical staff membership; Voluntary and Abshire would not have undergone surgery by Dr. Merrimon involuntary limitation, reduction, or loss of clinical Baker, would not have had her iliac artery mistakenly and privileges; Any evidence of an unusual pattern or an negligently severed during surgery, and would not have died.” excessive number of professional liability actions resulting Like Lobato and Simpson, Miller stated that because he in a final judgment against the applicant; Documentation understood that appellants *581 owned Beaumont Spine, as to the applicant's health status; Relevant practitioner- where Webb practiced medicine, Miller incorporated his specific data are compared to aggregate data, when criticisms of Webb as to appellants. available; Morbidity and mortality data, when available. Each reappraisal includes information concerning professional performance, including clinical and technical Arthur S. Shorr, FACHE skills and information from hospital performance improvement activities, when such data are available. Shorr stated that he is board certified in hospital and healthcare administration, and is a Fellow of the American ... College of Healthcare Executives. Shorr also stated that he has worked in senior executive management at acute care The applicant's ability to perform privileges requested hospitals for sixteen years, and he is also president of Arthur must be evaluated. This evaluation is documented in the S. Shorr & Associates, Inc., a management consulting firm individual's credentials file.... that provides consulting services to hospitals and physicians. At the time of renewal of privileges, the organized medical Shorr explained that his background, training, and experience staff evaluates individuals for their continued ability to make him “an expert in the administrative community provide quality care, treatment, and services for the standards applicable to all acute care hospitals in the United privileges requested as defined in the medical staff bylaws. States, including Renaissance Hospital in Houston.” ... Shorr explained that the administrative community standards for hospitals in Texas are promulgated by the Center The process for renewal of privileges involves the same for Medicare & Medicaid Services (CMS), the Texas steps ... and additionally requires the medical staff to Department of Health, The Joint Commission, and the evaluate a practitioner's ability to perform the privileges American Osteopathic Association (AOA), and he explained requested based upon his or her performance during the that the Joint Commission and AOA standards applied period of time he or she has been practicing at the to Renaissance Hospital. According to Shorr, “It is the organization.... Current competence is determined by the fiduciary responsibility of the hospital's governing body results of performance improvement activities and peer and chief executive officer ... to ensure that all applicable recommendations. administrative community standards are met.” *582 Evidence of current ability to perform privileges requested is required of all applicants for renewal of Shorr stated that the Joint Commission standards for hospital clinical privileges.... The process should identify quality of accreditation provide that when granting, renewing, or care, treatment and services issues for groups of individuals revising clinical privileges, the relevant criteria “include as well as individual practitioners. evidence of current competence[,]” as well as “peer recommendations when required.” Shorr quoted as follows Shorr further explained that hospital licensing regulations from the Joint Commission 2006 Hospital Accreditation contained in the Texas Administrative Code require a hospital Standards: to have a governing body that is responsible for appointing medical staff, among other things. The governing body must © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) “[d]etermine, in accordance with state law and with the In his supplemental report, Shorr stated that Baker's advice of the medical staff, which categories of practitioners “checkered history” included being the subject of two well-are eligible candidates for appointment to the medical publicized judicial opinions, in which it was noted that Baker staff; ... [e]nsure that criteria for selection include individual was addicted to Vicodin, exhibited mood swings, and had a character, competence, training, experience, and judgment”; “significant malpractice history, including two wrong-limb and “[e]nsure that the medical staff is accountable to the surgeries and a retained sponge surgery.” Shorr also noted governing body for the quality of care provided to patients[.]” that as of August 16, 2005, the state medical board had filed complaints concerning Baker's care of six patients. Shorr According to Shorr, the federal regulations applicable indicated that he had reviewed materials from the board of to Medicare/Medicaid facilities require that the hospital medical examiners concerning each of the six patients, and must have an effective governing body to determine he opined that in all of the cases, “Dr. Baker's actions or which categories of practitioners are eligible candidates omissions *583 fell below the standard of care.” Shorr stated for appointment to the medical staff; appoint members of that the medical board documents indicate that Baker had a the medical staff “after considering the recommendations continuing pattern of poor surgical outcomes and numerous of the existing members of the medical staff”; “[e]nsure surgical and post-operative complications. Shorr explained that the medical staff is accountable to the governing as follows: “It is my understanding that at the time Dr. body for the quality of care provided to patients”; and Webb referred Ms. Abshire to Dr. Baker in 2006, all of the “[e]nsure [that] the criteria for selection are individual above information, including the judicial opinions and more character, competence, training, experience, and judgment[.]” importantly the information from the medical board, were all Shorr also explained that the hospital's medical staff “must available to the public and were easily accessible through the periodically conduct appraisals of its members” and “examine internet.” Shorr opined that credentials of candidates for medical staff membership and make recommendations to the governing body on the the Hospital negligently and appointment of the candidates.” The medical staff must also maliciously breached the “be well organized and accountable to the governing body for administrative community the quality of the medical care provided to patients.” standards ... by credentialing Dr. Baker in the face of his well- Shorr opined that Renaissance Hospital–Houston breached documented history of malpractice the administrative community standards as follows: and professional incompetence in performing similar procedures in The governing body and chief executive officer failed recent years; his well-documented to carry out their fiduciary duties to the community by history of drug addiction and mental maliciously and negligently granting orthopedic surgery problems; and his well-documented privileges to Dr. Baker, in light of his “well-documented history of loss of privileges at other history of malpractice and professional incompetence hospitals. in performing similar procedures in recent years[,]” “well-documented history of drug addiction and mental Shorr explained that typical procedures used by hospitals problems[,]” and “history of loss of privileges at other to comply with the applicable standards for credentialing hospitals.” physicians include requiring an applicant for privileges to complete an extensive application that requests information According to Shorr, a prudent governing body and chief concerning the applicant's malpractice history, whether executive officer, “acting reasonably, would conclude based the applicant has had privileges at other hospitals upon Dr. Baker's history that granting orthopedic surgery denied or suspended, and peer recommendations; verifying privileges to Dr. Baker would put the hospital's patients in the information on the application by checking peer harm's way, and would act to protect the hospital's patients recommendations, reviewing licenses in other states, and by denying such privileges[,]” and Renaissance Hospital— contacting such agencies as the state board of medical Houston's failure “to prevent Dr. Baker from obtaining or examiners, state law enforcement agencies, and the drug maintaining orthopedic surgery privileges at Renaissance enforcement agency; and consulting the National Practitioner Hospital—Houston is evidence of its malicious acts.” Database. Shorr opined that if appellants had employed such © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) procedures, they would have discovered Baker's extensive abuses its discretion if it acts in an arbitrary or unreasonable malpractice history and the fact that other institutions had manner without reference to any guiding rules or principles.” taken adverse actions against his privileges. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court also abuses its discretion if it fails to analyze or According to Shorr, appellants apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). either failed to engage in a proper credentialing process in granting and/or renewing Dr. Baker's privileges, or chose to A healthcare liability claimant must provide each defendant ignore the information gathered in such a process because a physician and healthcare provider with an expert report no prudent governing body and chief executive officer, acting later than the 120th day after the date of the filing of reasonably, would conclude, based on Dr. Baker's history, the original petition. Tex. Civ. Prac. & Rem.Code Ann. § that granting orthopedic surgery privileges to Dr. Baker 74.351(a). The statute defines “expert report” as would put the hospital's patients in harm[']s way, and would act to protect the hospital's patients by denying such a written report by an expert that privileges. The failure of the governing body and chief provides a fair summary of the expert's executive officer to prevent Dr. Baker from obtaining or opinions as of the date of the report maintaining orthopedic surgery privileges at the Hospital regarding applicable standards of care, is evidence of it[s] grossly negligent and malicious acts in the manner in which the care rendered that the Hospital either failed to follow any credentialing by the physician or health care procedure at all, or if it did do any investigation, it knew provider failed to meet the standards, of the extreme degree of risk Dr. Baker posed to its and the causal relationship between patients and credentialed him anyway. Either way, the that failure and the injury, harm, or Hospital's conduct involved an extreme degree of risk, damages claimed. considering the magnitude of potential harm of which the Hospital knew but nonetheless proceeded with conscious Id. § 74.351(r)(6). If a plaintiff furnishes the required report indifference to the safety and welfare of its patients. within the time permitted, the defendant may file a motion challenging the adequacy of the report. Id. § 74.351(l ). In other words, the Hospital breached numerous specified Section 74.351(i) provides that a claimant may satisfy the administrative community standards, and thus, the standard requirements of section 74.351 of care, in granting Dr. Baker privileges to practice medicine and orthopedic surgery at its facility. by serving reports of separate experts regarding different physicians or Finally, Shorr explained that because he understood that health care providers or regarding the Renaissance entities have common ownership, are part different issues arising from the of the same healthcare system, or are “involved in a conduct of a physician or health care joint enterprise for the provision of healthcare to patients provider, such as issues of liability and such as Ms. Abshire[,]” his “criticisms of the Hospital causation. Nothing in this section shall administration *584 responsible for credentialing Dr. Baker be construed to mean that a single at Renaissance Hospital—Houston, are directed to the expert must address all liability and remaining Renaissance entities as well since they all have causation issues with respect to all related or common ownership and/or are all involved in a joint physicians or health care providers enterprise.” or with respect to both liability and causation issues for a physician or health care provider. STANDARD OF REVIEW AND PERTINENT LAW Id. § 74.351(i). [1] [2] [3] We review a trial court's decision regarding [4] [5] The statute provides that the trial court “shall grant the adequacy of an expert report under an abuse of discretion a motion challenging the adequacy of an expert report only standard. Am. Transitional Care Ctrs. of Tex., Inc. v. if it appears to the court, after hearing, that the report does Palacios, 46 S.W.3d 873, 877 (Tex.2001). “A trial court © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) not represent an objective good faith effort to comply with Appellants make numerous arguments concerning the alleged the definition of an expert report in Subsection (r)(6).” Id. § inadequacy of the reports. With respect to the malicious 74.351(l ). When determining whether the report represents credentialing claim, appellants contend that the peer review a good-faith effort, the trial court's inquiry is limited to the privilege immunizes them from suit. Appellants argue that the four corners of the report. Wright, 79 S.W.3d at 53; Palacios, reports fail to identify malice “or a specific intent to harm 46 S.W.3d at 878. To constitute a good-faith effort, the report Ms. Abshire, her heirs, or patients in general.” Appellants “must discuss the standard of care, breach, and causation also assert that the reports fail to provide a report as to each with sufficient specificity to inform the defendant of the of the appellants due to “a lack of [a] direct relationship conduct the plaintiff has called into question and to provide between Ms. Abshire and two of the three [a]ppellants.” In a basis for the trial court to conclude that the claims have addition, appellants maintain that the experts' reliance upon merit.” Palacios, 46 S.W.3d at 875. The expert report must certain standards for healthcare entities is “misplaced[,]” and set forth the applicable standard of care, how the standard that the experts had not “read [a]ppellants' bylaws prior to was breached, and explain the causal relationship between the forming their opinion[s].” Appellants also assert that the defendant's acts and the injury. Tex. Civ. Prac. & Rem.Code experts' opinions are speculative and conclusory, Ann. § 74.351(a), (r)(6); Doades v. Syed, 94 S.W.3d 664, 671–72 (Tex.App.-San Antonio 2002, no pet.); Rittmer v. particularly when the experts offer Garza, 65 S.W.3d 718, 722–23 (Tex.App.-Houston [14th no detail about: (1) when Dr. Baker Dist.] 2001, no pet.). was granted initial privileges at the Houston hospital; (2) when Dr. Baker *585 [6] [7] [8] When a plaintiff sues more than one applied for renewal of his privileges; defendant, the expert report or reports must set forth the (3) what Dr. Baker told the Houston standard of care applicable to each defendant and explain hospital in his applications[;] and (4) the causal relationship between each defendant's individual what the Houston hospital knew about acts and the injury. See Tex. Civ. Prac. & Rem.Code Ann. Dr. Baker from other sources and § 74.351(a), (r)(6). An expert report need not marshal all of when that information was discovered. the plaintiff's proof; however, a report that omits any of the Appellants also complain that the experts instead “focus on elements required by the statute does not constitute a good- public information to glean Dr. Baker's history[.]” faith effort. Palacios, 46 S.W.3d at 878–79. An expert “must explain the basis of his statements to link his conclusions to With respect to the report authored by Simpson, appellants the facts.” Wright, 79 S.W.3d at 52. argue that because Simpson's involvement with hospital quality assurance committees ended in 1997, 5 the report does not establish that Simpson was qualified to offer an expert THE ISSUES report concerning a cause of action that arose in 2006. With respect to the negligence causes of action, appellants contend In three issues, appellants assert that the trial court abused that the reports of Simpson and Lobato fail to adequately its discretion by overruling their objections, denying their address the following: duty, breach, and proximate cause; motions to dismiss, and failing to sign an order awarding each appellant; and each of appellees' “twenty-two counts of them their reasonable attorney's fees and court costs because negligence[.]” Appellants also complain that Shorr “is not a appellees' expert reports do not constitute an objective, good- physician and thus lacks the statutory qualifications *586 to faith effort to comply with the requirements of section render opinion testimony on proximate causation....” 74.351(r)(6) and Palacios. 4 See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 875. We address 5 The curriculum vitae attached to Simpson's report appellants' issues together. indicates that Simpson last served on a hospital quality assurance committee in 1997. 4 Appellants' issues are identical, except that issue one According to appellants, contrary to the reports, nurses refers to Houston Community Hospital, Inc. d/b/a are not required to diagnose medical conditions, prescribe Renaissance Hospital, issue two involves Renaissance Hospital, Inc., and issue three pertains to Renaissance corrective measures, or second-guess physicians' diagnoses, Healthcare Systems, Inc. and appellants argue that the reports do not provide a © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) sufficient nexus between the nurses' alleged breaches and supplemental report clarifies that nurses are not required Abshire's cardiac arrest. Appellants maintain that the reports to practice medicine or to prescribe treatments, but that fail to address loss of chance, and that Texas law “does not the standard of care for PACU nurses does require them permit recovery of damages for lost chance of survival or cure to recognize the signs and symptoms of hypovolemia, and in medical negligence cases where the adverse result probably Lobato explains that the expansion of Abshire's abdomen would have occurred anyway.” In addition, appellants argue would have been physically visible because of the volume of that the reports are based on assumption and speculation, blood that was present. and are conclusory. Furthermore, appellants argue that they “have denied being Dr. Webb's employer in their respective [10] [11] With respect to appellants' argument that the original answers[,]” and that they “are not liable for the acts reports are inadequate as to each of the appellants because of an independent contractor physician and the doctrine of of the lack of a direct relationship between Abshire and respondeat superior does not apply.” two of the three appellants, we note that the expert reports provided by Lobato, Simpson, and Shorr clearly explain [9] Appellants' argument that the peer review privilege *587 that their opinions concerning the entities other immunizes them from suit should be addressed in a motion than Renaissance Hospital—Houston are based upon the for summary judgment or at trial, rather than in a motion to understanding that those entities share common ownership dismiss under chapter 74 of the Civil Practice and Remedies and are involved in a joint enterprise for the provision of Code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6) healthcare services. “The theory of joint enterprise imputes (Statute requires that expert report provide a fair summary liability to one who, although he did no wrong, is so closely of the expert's opinions regarding the applicable standards connected to the wrongdoer that it justifies the imposition of care, how the care that was provided failed to meet the of vicarious liability.” David L. Smith & Assocs., L.L.P. v. standards, and the causal relationship between the failure and Stealth Detection, Inc., 327 S.W.3d 873, 878 (Tex.App.- the alleged injury.); Palacios, 46 S.W.3d at 875; see generally Dallas 2010, no pet.); see also St. Joseph Hosp. v. Wolff, Wissa v. Voosen, 243 S.W.3d 165, 169–70 (Tex.App.-San 94 S.W.3d 513, 517 (Tex.2002) (noting that joint enterprise Antonio 2007, pet. denied) (Scope of physician's legal duty is a theory of vicarious liability). When a petition asserts to patient was proper inquiry for summary judgment or trial, theories of liability that are purely vicarious, the conduct but “is simply not a determination contemplated or required being called into question involves legal principles, and is not under the statutory language of Chapter 74.”). measured by a medical standard of care, since hospital entities cannot practice medicine. See Gardner v. U.S. Imaging, Inc., Likewise, appellants' argument that respondeat superior 274 S.W.3d 669, 671–72 (Tex.2008). Therefore, a report that does not apply because their answer denied that they were adequately implicates the actions of the entity's agents or Webb's employer, as well as their argument that the experts employees is sufficient. Id.; Univ. of Tex. Sw. Med. Ctr. v. improperly relied upon certain standards for healthcare Dale, 188 S.W.3d 877, 879 (Tex.App.-Dallas 2006, no pet.); entities and did not read appellants' bylaws, should be In re CHCA Conroe, L.P., No. 09–04–453 CV, 2004 WL addressed at summary judgment or trial. See Tex. Civ. Prac. & 2671863, at *1 (Tex.App.-Beaumont Nov. 23, 2004) (orig. Rem.Code Ann. § 74.351(r)(6); Palacios, 46 S.W.3d at 875; proceeding) (mem. op.). Methodist Hosp. v. Shepherd–Sherman, 296 S.W.3d 193, 199 n. 2 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (Whether Appellants cite no authorities supporting their contention the experts' conclusions are correct is an issue for either trial that the experts' reliance upon information about Baker or summary judgment.); Wissa, 243 S.W.3d at 169–70. that was available in the public domain was improper. See Tex.R.App. P. 38.1(i) (An appellant's brief must contain In addition, appellants' argument that the expert reports state appropriate citations to authorities.). In addition, appellants an inappropriate standard of care for the nurses (i.e., that cite no authorities that hold that a report on a malicious the nurses diagnose medical conditions, prescribe corrective credentialing claim is insufficient if the expert does not state measures, and second-guess physicians' diagnoses) should that he has read the hospital's bylaws, and if the report also be the subject of a motion for summary judgment or does not discuss specifics concerning when the physician's an issue at trial, not a motion to dismiss concerning the privileges were granted and renewed, what the physician sufficiency of the expert reports. See Shepherd–Sherman, disclosed in his application, and when information from other 296 S.W.3d at 199 n. 2. Furthermore, we note that Lobato's sources was discovered. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) of survival when the adverse result would probably have Furthermore, although appellants cite section 74.351(a) of “occurred anyway.”). The reports by Lobato, Simpson, and the Texas Civil Practice and Remedies Code, Palacios, and Miller clearly explain that Baker caused Abshire's death this Court's decision in Beaumont Bone & Joint Institute, when he transected her right iliac artery while performing a P.A. v. Slaughter, those authorities do not stand for the laminectomy and diskectomy, and failed to realize that he proposition for which appellants cite them. See Tex. Civ. had done so; that is, the reports explain that if a competent Prac. & Rem.Code Ann. § 74.351(a); Palacios, 46 S.W.3d physician had performed Abshire's surgery, her right iliac at 875; Beaumont Bone & Joint Institute, P.A. v. Slaughter, artery would, in reasonable medical probability, not have No. 09–09–00316–CV, 2010 WL 730152, at *4 (Tex.App.- been transected, and she would not have died. The reports Beaumont Mar. 4, 2010, pet. denied) (mem. op.). also clearly explain that if Webb had not referred Abshire to Baker, Baker would not have performed surgery on Abshire. [12] Section 74.351(a) requires that a claimant must serve an expert report as to each healthcare provider against whom [13] We now turn to appellants' arguments that Simpson a “liability claim” is asserted. Tex. Civ. Prac. & Rem.Code was not qualified to offer an expert report concerning a cause Ann. § 74.351(a). Palacios holds that the expert report must of action that arose in 2006 because his involvement with discuss “the standard of care, breach, and causation with hospital quality assurance committees ended in 1997, and sufficient specificity to inform the defendant of the conduct that Shorr was unqualified to render an opinion concerning the plaintiff has called into question and to provide a basis proximate causation because he is not a physician. Appellants for the trial court to conclude that the claims have merit.” cite the general statutory requirements for qualifications of Palacios, 46 S.W.3d at 875. Neither section 74.351(a) nor an expert witness. See Tex. Civ. Prac. & Rem.Code Ann. §§ Palacios stands for the proposition that each specific factual 74.402(b)(1), 74.403(a) (West 2011). Section 74.402(b)(1) allegation of negligence must be discussed in an expert report. provides as follows: See id. In Slaughter, this Court discussed four particular allegations in the plaintiff's petition, which we explained all (b) In a suit involving a health care liability claim against constituted direct negligence claims, and held that a report a health care provider, a person may qualify as an expert was insufficient because it failed to adequately address the witness on the issue of whether the health care provider direct negligence claims. Slaughter, 2010 WL 730152, at departed from accepted standards of care only if the person: *4. Slaughter does not stand for the proposition that an (1) is practicing health care in a field of practice that expert report must discuss each factual allegation of an act involves the same type of care or treatment as that of negligence enumerated in a plaintiff's petition. Rather, delivered by the defendant health care provider, if the Slaughter holds that the report *588 must address each type defendant health care provider is an individual, at the of negligence claim. See id. The twenty-two allegations in time the testimony is given or was practicing that type appellees' petition pertain to each of their general categories of health care at the time the claim arose[.] of claims: negligence, malicious credentialing, and gross negligence on the part of appellants, as well as Dr. Webb Tex. Civ. Prac. & Rem.Code Ann. § 74.402(b)(1) (emphasis (for whose conduct appellees allege appellants are vicariously added). By its express terms, section 74.402(b)(1) does not liable). Appellants' argument is an overly broad reading of the apply in this case, since appellants (the health care providers term “claim,” and we decline to adopt that interpretation here. in question) are not individuals. The reports, when considered together, adequately address each type of claim asserted by appellees. Section 74.403(a) states that a person may qualify as an expert witness regarding the causal relationship between the With respect to appellants' argument concerning the reports' alleged departure from the standard of care and the injury failure to address “loss of chance,” we note that this is only if the person is a physician and “is otherwise qualified not a case in which the patient was already suffering from to render opinions on that causal relationship under the Texas the injury or illness which ultimately led to her death. See Rules of Evidence.” Id. § 74.403(a). Simpson's report and Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 398, 400 curriculum vitae clearly establish that Simpson is a physician, (Tex.1993) (In case involving failure to accurately diagnose and appellants do not contend that Simpson does not qualify a patient's cancer, the Supreme Court held that Texas law as an expert under the Texas Rules of Evidence; therefore, does not recognize a cause of action for loss of chance we reject appellants' argument *589 that Simpson's lack of © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) involvement in hospital quality assurance committees since Simpson, the nurses breached the standard of care by failing 1997 renders him unable to qualify as an expert witness. Shorr to (1) recognize hypovolemia, (2) demand more aggressive is not a physician, and his report does not purport to offer fluid resuscitation, (3) demand the continuous presence of a an opinion concerning causation. Therefore, we also reject physician at Abshire's bedside, and (4) institute the chain of appellants' argument concerning Shorr's qualifications. See command. Simpson's report also explained that if the PACU id. § 74.403(a). nurses had followed the standard of care, a physician would have realized that Abshire was hemorrhaging, provided [14] We now turn to appellants' contentions that the expert appropriate treatment, and saved Abshire's life. reports are speculative and conclusory; fail to adequately address the standard of care, breach, and proximate cause; Miller explained in his report that the standard of care and fail to identify malice. Lobato explained that the required Webb to use reasonable medical judgment to refer standard of care required physicians and nursing personnel Abshire to a competent physician. According to Miller, to recognize the signs of hemorrhage, and that if the nurses Webb should have known of Baker's history through the had promptly recognized Abshire's symptoms, summoned a TBME newsletter, information on the TBME website about physician to Abshire's bedside, and instituted the chain of complaints concerning Baker, the published court cases command, Abshire would “more likely than not ... have been involving malpractice by Baker, and Baker's loss of privileges appropriately treated and her life saved.” Lobato stated that at two hospitals. Miller opined that Webb breached the the nurses' actions were, “in reasonable medical probability[,] standard of care by referring Abshire to Baker because the proximate cause of Ms. Abshire's death[,]” and that Webb failed to *590 ascertain Baker's qualifications, and Abshire's death would have been prevented if the standard of that if Webb had not referred Abshire to Baker, Abshire care had been followed. “would not have undergone surgery by ... Baker, would not have had her iliac artery mistakenly and negligently severed In his report, Simpson explained that the complaints filed during surgery, and would not have died.” Because Miller by the TBME concerning Baker were publicly available, understood that appellants owned Beaumont Spine, where and Baker had a reputation for incompetence and drug use. Webb practiced medicine, Miller incorporated his criticisms Simpson explained that the standard of care required Webb of Webb into those directed against appellants. to have a basic knowledge of the skills and professional reputation of the physician to whom he referred Abshire, In his report, Shorr explained that the standards applicable to and to refrain from sending Abshire to a physician with a Renaissance Hospital require that before granting privileges, documented history of drug use, malpractice, and repeated the hospital must evaluate challenges to the applicant's complaints by the TBME. Additionally, Simpson explained licensure, any relinquishment of the license, termination that Webb's referral of Abshire to Baker directly caused Baker of medical staff membership, limitation, reduction, or loss to perform surgery on Abshire, and that if Baker had not been of clinical privileges, evidence of an excessive number of Abshire's surgeon, her artery would not have been transected, liability actions, and health status; must compare practitioner- gone undiscovered, and led to Abshire's death. Moreover, specific data to aggregate data; and must review morbidity Simpson stated that because Webb's employer was owned and and mortality data. Shorr also explained that when an operated by the various Renaissance entities, Webb was an applicant's privileges are renewed, his ability to perform the employee of the Renaissance entities, and the Renaissance requested privileges must be evaluated. Additionally, Shorr entities were responsible for Webb's conduct. stated that a hospital must have a governing body that is responsible for appointing medical staff, and the governing Simpson indicated that appellants had a duty to follow body must examine an applicant's individual character, JCAH standards in credentialing physicians, and that if they competence, training, experience, and judgment. Shorr had denied or revoked Baker's surgical credentials, in all opined that appellants breached the applicable standards reasonable medical probability, a competent surgeon would by maliciously and negligently credentialing Baker despite have operated on Abshire, Abshire's artery would not have his well-documented history of malpractice, drug addiction, been severed, and Abshire would not have died. Simpson also mental problems, and loss of privileges at other hospitals. opined that all of the Renaissance entities were responsible Shorr explained that if appellants had employed the required for credentialing Baker because the entities had common procedures, they would have discovered Baker's malpractice ownership or were involved in a joint enterprise. According to history and his loss of privileges at other institutions. Shorr © 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 Renaissance Healthcare Systems, Inc. v. Swan, 343 S.W.3d 571 (2011) Reviewing the expert reports together, we conclude that the stated that appellants breached the standard of care because reports discuss the standards of care, breach, and causation they either failed to engage in a proper credentialing process with sufficient specificity as to each of the appellants to in granting or renewing Baker's privileges, or ignored the inform appellants of the conduct appellees have called into information they gathered. Shorr opined that appellants' question and to provide a basis for the trial court to conclude failure “to prevent Dr. Baker from obtaining or maintaining that the claims have merit. See Palacios, 46 S.W.3d at 875; orthopedic surgery privileges at the Hospital is evidence of see also Doades, 94 S.W.3d at 671–72; Rittmer, 65 S.W.3d it[s] grossly negligent and malicious acts in that the Hospital at 722–23; see also Tex. Civ. Prac. & Rem.Code Ann. § either failed to follow any credentialing procedure at all, or 74.351(i). Accordingly, we overrule appellants' issues and if it did do any investigation, it knew of the extreme degree affirm the trial court's judgment. of risk Dr. Baker posed to its patients and credentialed him anyway.” Finally, like the other experts, Shorr explained AFFIRMED. that his criticisms of the hospital were imputed to the other appellants because they shared common ownership or were involved in a joint enterprise. All Citations 343 S.W.3d 571 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 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010) 323 S.W.3d 527 West Headnotes (17) Court of Appeals of Texas, Waco. [1] Appeal and Error Ana Maria Gonzalez SALAIS, Individually Rulings on Motions Relating to Pleadings and as Representative of the Estate of A trial court's decision to dismiss a health-care Ruben Gonzalez, Deceased, Appellants, liability claim under the expert report statute v. is reviewed by the abuse-of-discretion standard. TEXAS DEPARTMENT OF AGING V.T.C.A., Civil Practice & Remedies Code § & DISABILITY SERVICES, Appellee. 74.351. No. 10–09–00155–CV. | Aug. 4, 2010. Cases that cite this headnote Synopsis [2] Appeal and Error Background: Mother of patient who died at a Texas Competency of witness Department of Aging and Disability Services (TDADS) A trial court's decision on whether a person is facility brought a health-care liability action against TDADS. qualified to offer an expert opinion in a health- The 77th District Court, Limestone County, Deborah Oakes care liability claim is reviewed under the abuse- Evans, J., granted motion to dismiss by TDADS, and mother of-discretion standard. V.T.C.A., Civil Practice appealed. & Remedies Code § 74.351. 1 Cases that cite this headnote Holdings: The Court of Appeals, Rex D. Davis, J., held that: [3] Appeal and Error [1] paramedic was qualified to provide an expert opinion on Nature and Extent of Discretionary Power the accepted standard of care in restraining patients; A trial court has no discretion in determining what the law is or applying the law to the facts. [2] paramedic's expert report represented a good-faith effort to comply with the expert report statute; Cases that cite this headnote [3] physician's expert report did not establish he was qualified to provide an opinion on the cause of patient's death; but [4] Appeal and Error Abuse of discretion [4] expert reports of paramedic and physician together A clear failure by the trial court to analyze or constituted a good-faith effort to provide a fair summary of apply the law correctly will constitute an abuse the cause of patient's death; and of discretion. [5] case would be remanded so that trial court could exercise Cases that cite this headnote its discretion regarding mother's request for an extension to cure technical deficiency in physician's report. [5] Evidence Due care and proper conduct in general Reversed. Paramedic, who provided opinion for mother of developmentally disabled patient who died after Tom Gray, C.J., dissented and filed opinion. being physically retrained by healthcare staff at Texas Department of Aging and Disability Services (TDADS) facility, was qualified to offer an expert opinion on the accepted standards © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010) of care in mother's health-care liability action the statute the report must address the standard against TDADS, where, based on mother's of care, breach, and causation with sufficient allegations, the type of care or treatment specificity to inform the defendant of the conduct and the condition involved was the use of the plaintiff calls into question and to provide a physical restraint and a restraint board on a basis for the trial court to conclude that the claims combative person, and paramedic was a certified have merit. V.T.C.A., Civil Practice & Remedies practitioner familiar with the standard of care Code § 74.351. in restraining combative persons and instructed others on such standard of care. V.T.C.A., Civil 2 Cases that cite this headnote Practice & Remedies Code § 74.351. [9] Health Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits [6] Health Paramedic's expert report, provided on behalf Affidavits of merit or meritorious defense; of mother of developmentally disabled patient expert affidavits in health-care liability action brought against When considering a motion to dismiss under Texas Department of Aging and Disability the expert report statute for health-care liability Services (TDADS) after patient died while claims, the issue is whether the report represents being physically restrained by TDADS facility, a good-faith effort to comply with the statutory represented a good-faith effort to comply with definition of an expert report. V.T.C.A., Civil the expert report statute for health-care liability Practice & Remedies Code § 74.351. claims, where report noted that paramedic had been qualified as an expert in restraint asphyxia, 1 Cases that cite this headnote stated he was familiar with the standard of care for restraining combative persons, stated what [7] Health steps should be taken to monitor for respiratory Affidavits of merit or meritorious defense; distress, and stated that had any of the restrainers expert affidavits prevented the application of the restraint board it was more likely than not that the patient In determining whether a report represents a would not have suffered from restraint asphyxia. good-faith effort to comply with the expert V.T.C.A., Civil Practice & Remedies Code § report statute for health-care liability claims, the 74.351. inquiry is limited to the four corners of the report. V.T.C.A., Civil Practice & Remedies Code § Cases that cite this headnote 74.351. 1 Cases that cite this headnote [10] Health Affidavits of merit or meritorious defense; expert affidavits [8] Health Affidavits of merit or meritorious defense; Expert reports can be considered together in expert affidavits determining whether the plaintiff in a health care liability action has provided adequate An expert report need only represent a good-faith expert opinion regarding the standard of care, effort to provide a fair summary of the expert's breach, and causation. V.T.C.A., Civil Practice opinions, in order to comply with the expert & Remedies Code § 74.351. report statute for health-care liability claims; the report does not have to marshal all of the 2 Cases that cite this headnote plaintiff's proof and the plaintiff need not present evidence in the report as if it were actually litigating the merits, and, instead, to comply with [11] Health © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010) Affidavits of merit or meritorious defense; report statute for health-care liability claims. expert affidavits V.T.C.A., Civil Practice & Remedies Code § A physician's report on causation should not be 74.351. read in isolation, for purposes of the expert report 1 Cases that cite this headnote statute for health-care liability claims. V.T.C.A., Civil Practice & Remedies Code § 74.351. [15] Health 2 Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits [12] Health Expert reports of paramedic and emergency Affidavits of merit or meritorious defense; medicine physician, in health care liability action expert affidavits mother of developmentally disabled patient The qualifications of an expert must appear brought against Texas Department of Aging and in the report itself and cannot be inferred, for Disability Services (TDADS) after patient died purposes of the expert report statute for health- while being physically restrained by TDADS care liability claims. V.T.C.A., Civil Practice & employees, together constituted a good-faith Remedies Code § 74.351. effort to provide a fair summary of the causal relationship between employees' conduct and 3 Cases that cite this headnote patient's death by restraint asphyxia as required by the expert report statute for health-care liability claims, though physician's report did not [13] Health show that he was qualified to give an expert Affidavits of merit or meritorious defense; opinion on causation, as the reports provided expert affidavits enough information linking the breach of the Expert report of physician did not establish standard of care to the death. V.T.C.A., Civil that he was qualified to opine on the causal Practice & Remedies Code § 74.351. relationship of employees' conduct and patient's death, as required in order for the report to 1 Cases that cite this headnote satisfy the expert report statute for health-care liability claims in health care liability action [16] Judgment mother of developmentally disabled patient Necessity for entry brought against Texas Department of Aging and Disability Services (TDADS) after patient died Motions while being restrained by health care workers at Entry or Filing of Orders TDADS facility, where physician's curriculum Any order or judgment, to be effective, must be vitae (CV) only disclosed that he was practicing entered of record. in the field of emergency medicine, and in the past held positions as an emergency medicine 1 Cases that cite this headnote physician and a general and trauma surgeon. V.T.C.A., Civil Practice & Remedies Code § [17] Appeal and Error 74.351. Ordering New Trial, and Directing Further Proceedings in Lower Court 3 Cases that cite this headnote Health care liability action, brought by mother of developmentally disabled patient against [14] Health Texas Department of Aging and Disability Affidavits of merit or meritorious defense; Services (TDADS) after patient died while being expert affidavits physically restrained by TDADS employees, Merely being a physician is insufficient to would be remanded by Court of Appeals to the qualify as a medical expert under the expert trial court so that the trial court could exercise © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010) its discretion under the expert report statute Salais also pleads: regarding whether mother should be granted an extension to cure technical deficiency in In the Prevention & Management of Aggressive Behavior physician's report, i.e., report did not set forth Course Synopsis allegedly provided by Defendant Mexia his qualifications to give an expert opinion on [State School] to its employees, employees are warned that causation, as only the docket sheet indicated that “[e]xtreme care must be exercised during any horizontal mother's motion for an extension was denied, restraint to insure that the person's ability to breathe but docket-sheet entries were not “of-record” is not restricted.... [D]uring all horizontal restraints, the rulings. V.T.C.A., Civil Practice & Remedies person must remain in a side-lying position and monitored Code § 74.351(c). continuously. Failure to do so may risk serious injury and death from positional asphyxia, [which] occurs when Cases that cite this headnote there is insufficient intake of oxygen as a result of body positioning that interferes with one's ability to breathe.” [Ellipsis and brackets in original]. Attorneys and Law Firms She further pleads that the “Mexia State School Annual Retraining Course Synopsis,” allegedly provided to every *530 R. Keith Weber, Woodfill & Pressler LLP, Houston, participant, gives the same warning and also provides for Appellants. “that the person who is restraining the lower body has an important role in monitoring breathing, circulation, and John P. Giberson, Atty. General's Office, Tort Litigation general condition of the restrained individual, and in assisting Division, Austin, Neal E. Pirkle, Naman, Howell, Smith & in maintaining the restrained individual in a side-lying Lee LLP, Waco, for Appellee. position.” Before Chief Justice GRAY, Justice REYNA, and Justice *531 In her health-care liability cause of action, Salais DAVIS. alleges that TDADS [Mexia State School] and TDADS employees Korn, Thornton, and Thomas were negligent in the care and treatment of Ruben in each of the following ways: OPINION 1. Failure to recognize and/or appreciate the risk factors REX D. DAVIS, Justice. for the potential occurrence of death when performing a Ana Maria Gonzalez Salais appeals the trial court's order physical restraint; dismissing her health-care liability claim against the Texas 2. Misuse of the restraints and restraint board when Department of Aging and Disability Services (TDADS). performing a physical restraint; Salais's live petition alleges that her son Ruben Gonzalez 3. Failure to anticipate the risk of traumatic asphyxia when was a patient at the Mexia State School, a TDADS facility, performing a physical restraint; because of his developmental disability. Late one evening (after midnight), Ruben had refused to go to bed and was 4. Failure to plan the physical restraint according to the then physically restrained by Sheri Thornton and Charles increased risk for serious injury to Decedent; Korn, two TDADS employees. After Joel Thomas, a third 5. Inappropriate management of the complication of employee, arrived, they placed Ruben on a restraint board. performing a physical restraint; Sue Sanderson, a TDADS nurse, was called to the scene and found Ruben pale with no pulse or blood pressure. Sanderson 6. Failure to have the requisite knowledge regarding was unable to resuscitate Ruben. An automated external appropriate responses to a combative physical restraint; defibrillator (AED) was employed, but it was not used to shock Ruben. Paramedics arrived and their monitor showed a 7. Failure to perform the appropriate interventions flat line and no cardiac rhythm. Ruben was taken to a hospital, during the physical restraint of Decedent once health where he was pronounced dead. complications were encountered; © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010) TDADS's motion to dismiss and brief assert that Wohlers's 8. Failure to provide proper education and training to report and CV do *532 not establish his qualifications employees who were called upon to assist in the restraint to testify about the standards of care applicable to the of Decedent. Mexia State School healthcare staff or to the treatment for individuals with behavioral, mental, and developmental Section 74.351 of the Civil Practices and Remedies Code disabilities. Its brief also asserts that Wohlers's report does provides that within 120 days of filing suit, a claimant must not show that the “management and care” of Ruben on the serve a curriculum vitae (CV) and one or more expert reports occasion in question is “something universally done.” regarding every defendant against whom a health care claim is asserted. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 Regarding his qualifications, Wohlers's report states: (Vernon Supp. 2009). Salais provided two expert reports. One report was by James Wohlers, a paramedic, which addresses I received my paramedic education the standard of care and breach elements relating to the use of from Creighton University in 1992. the restraint board and the AED. The other report, of Donald Initially I was a paramedic in Winston, M.D., addresses the causation element. Omaha, Nebraska from 1992 to 1996, then a paramedic for the TDADS objected to the reports and moved to dismiss Salais's City and County of Denver from health-care liability claim under section 74.351. See id. The 1996 until 2000. Since 2000, I motion asserted that Salais's experts were not qualified and have been with the Grand Island that their reports were inadequate. The trial court granted Fire Department in Grand Island, TDADS's motion to dismiss without stating any grounds. Nebraska as a paramedic/firefighter. I In her first issue, Salais argues that the trial court erred in have also been involved in restraint granting TDADS's motion to dismiss. asphyxia education since 2006. I teach to EMS, Law Enforcement and [1] [2] [3] [4] We review the trial court's decision persons involved in the restraining to dismiss a health-care liability claim by the abuse-of- of combative persons. I have been discretion standard. American Transitional Care Ctrs. of Tex., qualified as an expert in the field of Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). Also, a restraint asphyxia. trial court's decision on whether a person is qualified to offer an expert opinion in a health-care liability claim is reviewed Wohlers's CV restates the above history and notes his under the abuse-of-discretion standard. Moore v. Gatica, 269 certification as an EMS instructor and that he specializes S.W.3d 134, 139 (Tex.App.-Fort Worth 2008, pet. denied). in “restraint-related issues” and instructs on Advanced Life “However, a trial court has no discretion in determining what Support and Basic Life Support topics. His report further the law is or applying the law to the facts. Walker v. Packer, states: 827 S.W.2d 833, 840 (Tex.1992). A clear failure by the trial court to analyze or apply the law correctly will constitute I am familiar with the standard of care an abuse of discretion. Id.” Austin Heart, P.A. v. Webb, 228 for restraining a combative person and S.W.3d 276, 279–80 (Tex.App.-Austin 2007, no pet.); see understand what steps should be taken also Methodist Hosp. v. Shepherd–Sherman, 296 S.W.3d 193, to monitor for respiratory distress. 197 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (“Though Through my education, background we may not substitute our judgment for that of the trial court, and experience, I am knowledgeable the trial court has no discretion in determining what the law in the standard of care that the staff is or applying the law to the facts.”). of Mexia State School should have provided to Mr. Gonzales on the night he died. Wohlers Report On the issue of Wohlers's qualifications, we turn to the Qualifications applicable statute, section 74.402, which provides in pertinent part: © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010) in Wohlers's report, the type of care or treatment and the (b) In a suit involving a health care liability claim against condition involved is the use of physical restraint and a a health care provider, a person may qualify as an expert restraint board on a combative person. Wohlers's report and witness on the issue of whether the health care provider CV show that he is a certified practitioner and instructor departed from accepted standards of care only if the person: in health care services relevant to the health-care liability claim in this case; he has been a paramedic since 1992 (1) is practicing health care in a field of practice that and has been instructing on restraint asphyxia since 2006, involves the same type of care or treatment as that delivered including teaching persons involved in the restraining of by the defendant health care provider, if the defendant combative persons. His report states that he is familiar with health care provider is an individual, at the time the the standard of care for restraining a combative person and is testimony is given or was practicing that type of health care knowledgeable of the standard of care that the staff of Mexia at the time the claim arose; State School should have provided to Ruben on the night he (2) has knowledge of accepted standards of care for health died with respect to the use of physical restraint and a restraint care providers for the diagnosis, care, or treatment of the board. illness, injury, or condition involved in the claim; and Under the applicable criteria in section 74.402(b), Wohlers's (3) is qualified on the basis of training or experience to report and CV demonstrate that he is qualified to offer an offer an expert opinion regarding those accepted standards expert opinion on the accepted standards of care for this type of health care. of care or treatment by TDADS healthcare staff of combative persons. To the extent the trial court concluded otherwise, the (c) In determining whether a witness is qualified on the trial court abused its discretion. basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness: Adequacy TDADS's motion to dismiss asserted that Wohlers's report is (1) is certified by a licensing agency of one or more states inadequate because it does not articulate the relevant standard of the United States or a national professional certifying of care and/or the bases for the relevant standards of care agency, or has other substantial training or experience, in applicable to TDADS and it does not specifically state the the area of health care relevant to the claim; and manner in which TDADS breached the applicable standard (2) is actively practicing health care in rendering health of care. care services relevant to the claim. [6] When considering a motion to dismiss under subsection TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b, c) 74.351(b), the issue is whether the report represents a good- (Vernon 2005). faith effort to comply with the statutory definition of an expert report. See Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 [5] We disagree that Wohlers was required to be qualified (Tex.2002); Palacios, 46 S.W.3d at 878. An “expert report” in general as an expert about the standards of care applicable is “a written report by an expert that provides a fair summary to the Mexia State School healthcare staff for the care and of the expert's opinions as of the date of the report regarding treatment for individuals *533 with behavioral, mental, and applicable standards of care, the manner in which the care developmental disabilities. Rather, under the literal language rendered by the physician or health care provider failed to of subsections 74.402(b)(1, 2), Wohlers is only required to meet the standards, and the causal relationship between that be practicing health care in a field of practice that involves failure and the injury, harm, or damages claimed.” TEX. CIV. the same type of care or treatment as that delivered by the PRAC. & REM.CODE ANN. § 74.351(r)(6). defendant health care provider and have knowledge of the accepted standards of care for health care providers for the [7] [8] In determining whether the report represents a care or treatment of the condition involved in the claim. good-faith effort, the inquiry is limited to the four corners See id. § 74.402(b)(1, 2); see, e.g., Group v. Vicento, 164 of the report. Palacios, 46 S.W.3d at 878. The report need S.W.3d 724, 730–31 (Tex.App.-Houston [14th Dist.] 2005, only represent a good-faith effort to provide a fair summary of pet. denied). Based on Salais's allegations and the information the expert's opinions. Id. The report does not have to marshal all of the plaintiff's proof and the plaintiff need not present © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010) evidence in the report as if it were actually litigating the conduct that Salais calls into question and provides a basis merits. Id. at 879. Rather, to constitute a good-faith effort, for the trial court to conclude that the claims have merit. the report must address the standard of care, breach, and See Palacios, 46 S.W.3d at 875. It informs TDADS “what causation with sufficient specificity to inform the defendant care was expected but not given.” Fagadau v. Wenkstern, 311 of the conduct the plaintiff calls into question and to provide a S.W.3d 132, 138 (Tex.App.-Dallas 2010, no pet. h.) (citing basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 880). To the extent the trial court Id. at 875. concluded otherwise, the trial court abused its discretion. [9] The Wohlers report notes that he has been qualified as an expert in restraint *534 asphyxia. It cites an investigative Dr. Winston Report report that he reviewed and details the course of events and the conduct of three employees (Thomas, Korn, and Thornton) in [10] [11] Section 74.351(i) permits a claimant to satisfy placing Ruben on a restraint board and, according to Thomas, any requirement of section 74.351 for serving an expert report using a restraint strap across his diaphragm, after which by serving reports of separate experts. TEX. CIV. PRAC. Ruben “was breathing hard, in gasps, and making gurgling & REM.CODE ANN. § 74.351(i); see Packard v. Guerra, sounds.” According to Korn, a restraint strap was across 252 S.W.3d 511, 527 (Tex.App.-Houston [14th Dist.] 2008, Ruben's chest, and Korn observed only a “slight rise” in his pet. denied). Expert reports can be considered together in chest; Ruben had a weak pulse. Thornton observed Ruben on determining whether the plaintiff in a health–care liability the restraint board and thought he was asleep, but he looked action has provided adequate expert opinion regarding the “funny” and was breathing shallow. Nurse Sanderson arrived, standard of care, breach, and causation. See Walgreen Co. and after finding Ruben's color to be abnormally pale, no v. Hieger, 243 S.W.3d 183, 186 n. 2 (Tex.App.-Houston blood pressure, and no pulse, she initiated CPR and attempted [14th Dist.] 2007, pet. denied); Martin v. Abilene Regional to use an AED. Mexia Fire/EMS then arrived, took over CPR, Med. Center, No. 11–04–00303–CV, 2006 WL 241509, at and did an endotracheal intubation before transferring Ruben *4–5 (Tex.App.-Eastland Feb. 2, 2006, no pet.) (mem. op.). to Parkview Regional Hospital, where he was pronounced A physician's report on causation should not be read in dead. Wohlers states: isolation. See Martin, 2006 WL 241509, at *4; see also TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)(C) I am familiar with the standard of care for restraining (providing that only a physician can be an expert giving a combative person and understand what steps should opinion testimony on causal relationship). be taken to monitor for respiratory distress. Through my education, background and experience, I am knowledgeable in the standard of care that the staff of *535 Qualifications Mexia State School should have provided to Mr. Gonzalez TDADS's motion to dismiss and brief assert that Dr. on the night he died. Winston's report and CV do not establish his qualifications to testify about causation. Its brief first asserts that there The standard of care requires that if any one of the persons is no showing that Dr. Winston is a licensed physician. involved in the restraining of Mr. Gonzalez had recognized “Expert” means, “with respect to a person giving opinion that he was in respiratory distress, he should not have testimony about the causal relationship between the injury, been placed on a restraint board and had straps placed harm, or damages claimed and the alleged departure from the across his chest. Had anyone of the restrainers prevented applicable standard of care in any health care liability claim, the application of the restraint board, it is more likely than a physician who is otherwise qualified to render opinions on not that Mr. Gonzalez would not have suffered restraint such causal relationship under the Texas Rules of Evidence.” asphyxia. No one intervened in the application of the TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5) restraint board. (C) (Vernon Supp. 2009); see also TEX. CIV. PRAC. & REM.CODE ANN. § 74.403(a) (Vernon 2005). Wohlers's report sets forth his familiarity with the standard of care and the basis therefor, what the standard of care Dr. Winston's report is in a letter format, and his is, and how the TDADS staff breached it on the occasion letterhead and typed signature block identify him as “Donald in question. The report addresses the standard of care and Winston, MD.” His letterhead also reveals his website breach with sufficient specificity to inform TDADS of the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010) (www.urbansurgeon.com) and his email address at that website. Furthermore, his December 2008 CV reflects that 1 To the extent that Salais has asserted a health-care he is a licensed Texas physician (No. F0832, licensed liability claim based on alleged misuse of the AED (it in February 1978 and expiring May 31, 2010). TDADS's is in the Wohlers report, but it is not pleaded by Salais), assertion that there is no showing that Dr. Winston is a there is “no report” at all as to causation, and the trial licensed physician is incorrect. court properly dismissed that part of the health-care liability claim. See Benson v. Vernon, 303 S.W.3d 755, Dr. Winston's report is a letter to Salais's attorney and states 760–61 (Tex.App.-Waco 2009, no pet.). in its entirety: [12] [13] [14] TDADS is correct that Dr. Winston's report fails to show how he is qualified to render an expert At your request, I have reviewed an autopsy report and opinion on causation in this case. Rule 702 of the Texas death certificate of Ruben Gonzales, a 15 year old Hispanic Rules of Evidence requires that an *536 expert be qualified male who apparently was a student at the Mexia State by “knowledge, skill, experience, training, or education.” School. TEX.R. EVID. 702. The qualifications of an expert must I have no way of knowing exactly what took place on appear in the report itself and cannot be inferred. See Benson or about January 15, 2007, but I have reviewed a Third v. Hall, No. 10–09–00284–CV, 2010 WL 376957, at *1 Amended Petition in Cause 28901A which states that three (Tex.App.-Waco Feb. 3, 2010, no pet. h.); Estorque v. employees of Mexia State School physically restrained Mr. Schafer, 302 S.W.3d 19, 26 (Tex.App.-Fort Worth 2009, no Gonzales. After a period of time, a nurse at the hospital pet.); Philipp v. McCreedy, 298 S.W.3d 682, 686 (Tex.App.- found Mr. Gonzales dead. Resuscitation failed, and after San Antonio 2009, no pet.); Baylor College of Medicine endotrachial [sic] intubation by Mexia Fire Department v. Pokluda, 283 S.W.3d 110, 117 (Tex.App.-Houston [14th EMS, he was taken to Parkview Regional Hospital where Dist.] 2009, no pet.); Hansen v. Starr, 123 S.W.3d 13, 19 he was pronounced dead. (Tex.App.-Dallas 2003, pet. denied). Dr. Winston's report does not set forth his qualifications at all. His CV reflects My focus is on the Autopsy report in Case No. JP0187–07– that he is currently practicing in the field of emergency 0120ACG done January 16th 2007. medicine in Houston and has held several positions as an emergency medicine physician and a general and trauma I agree with the physical findings of: surgeon. Aside from their not being in the report itself, these position descriptions alone are inadequate to show how Dr. 1. Petechiae in the right and left conjunctivae Winston is qualified to opine on the causal relationship of 2. Contusions to the right arm and left leg Ruben's death. Merely being a physician is insufficient to qualify as a medical expert. See Broders v. Heise, 924 S.W.2d 3. Subcutaneous hemorrhage on the upper back and 148, 152 (Tex.1996); Hagedorn v. Tisdale, 73 S.W.3d 341, lower back 350 (Tex.App.-Amarillo 2002, no pet.). 4. Two subgaleal hemorrhages Because there is no showing in Dr. Winston's report that he is qualified to give an expert opinion on causation, to the extent 5. Abrasions and contusions on face and arms the trial court granted the motion to dismiss on this basis, it 6. Mechanical asphyxia did not abuse its discretion. We overrule Salais's first issue. I disagree with the final opinion of the nine pathologists to the extent that there is evidence that Mr. Gonzales in Adequacy any way contributed to his own death, but I agree that his [15] Because of our disposition of the second issue, we death was a homicide caused by restraint and mechanical must address TDADS's challenge to the adequacy of Dr. asphyxia imposed on him by the three Mexia State School Winston's report in its motion to dismiss. On the adequacy of employees. Dr. Winston's report, we are precluded “from filling gaps in a report by drawing inferences or guessing as to what the expert If you have any other questions, please feel free to contact likely meant or intended.” Austin Heart, 228 S.W.3d at 279. me. 1 But here, there is no gap, and there is no guessing, that Dr. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010) Winston's opinion on the cause of Ruben's death—“restraint and mechanical asphyxia imposed on him by the three Mexia [17] Dr. Winston's report is technically deficient—as State School employees”—is the same conduct referred to opposed to being “no report”—because the report lacks his in the Wohlers report as being the three Mexia State School qualifications to give an expert opinion on causation. It is thus employees' breach of the standard of care in restraining a appropriate to remand this case to the trial court so it can person in respiratory distress. exercise its discretion whether to grant a thirty-day extension so that Salais can attempt to cure this deficiency. See Austin When the reports are read together, as they must be in this Heart, 228 S.W.3d at 284–85; see also In re Buster, 275 case, they satisfy the causal-relationship requirement because S.W.3d 475, 477 (Tex.2008) (“A report by an unqualified they constitute a good-faith effort to provide a fair summary expert will sometimes (though not always) reflect a good- of the causal relationship between the employees' conduct faith effort sufficient to justify a 30–day extension.”). and Ruben's death by restraint asphyxia. See Martin, 2006 WL 241509, at *5. Read together, they provide “enough Accordingly, we sustain the second issue and remand this information linking the defendant's breach of the standard of cause to the trial court with the instruction to consider and care to the plaintiff's injury.” Baker v. Gomez, 276 S.W.3d rule on Salais's motion for a thirty-day extension to attempt 1, 8 (Tex.App.-El Paso 2008, pet. denied). And because to cure the deficiency in Dr. Winston's report. Dr. Winston's report does link the employees' conduct with Gonzalez's death, TDADS's reliance on Bogar v. Esparza and Shaw v. BMW Healthcare, Inc. is misplaced, as those Chief Justice GRAY dissenting. cases are distinguishable on that basis. Cf. Bogar v. Esparza, 257 S.W.3d 354, 364 (Tex.App.-Austin 2008, no pet.) (“In essence, Dr. Adame's report is a second autopsy report, TOM GRAY, Chief Justice, dissenting. opining about the cause of Ms. Guerrero's death without Ana Maria Gonzalez Salais appeals the trial court's judgment explaining who caused it or how.”) (emphasis added); Shaw dismissing her health care liability claim against the Texas v. BMW Healthcare, Inc., 100 S.W.3d 8, 12–13 (Tex.App.- Department of Aging and Disability Services. Because the Tyler 2002, pet. denied) (op. on reh'g) (“An opinion solely trial court did not abuse its discretion in granting TDADS's addressing the cause of death does not satisfy the statutory motion to dismiss or in denying Salais's request for a 30– requirements.”). day extension, we should affirm the trial court's judgment. Because the Court does not, I respectfully dissent. Extension BACKGROUND Subsection 74.351(c) provides: “If an expert report has not been served within the *537 period specified by Subsection Salais's son, Ruben Gonzalez, was a patient at a TDADS (a) because elements of the report are found deficient, the facility, the Mexia State School. After an altercation with the court may grant one 30–day extension to the claimant in order State School staff, Gonzalez was placed on a restraint board. to cure the deficiency.” TEX. CIV. PRAC. & REM.CODE He then died. Salais sued both TDADS and the Mexia State ANN. § 74.351(c). In her second issue, Salais asserts that the School. The trial court granted TDADS's motion to dismiss. trial court abused its discretion in not granting her alternative motion for a thirty-day extension to cure her expert report's In two issues on appeal, Salais argues that the trial court deficiency. erred in granting TDADS's motion to dismiss pursuant to section 74.351 of the Texas Civil Practice and Remedies Code [16] The docket sheet appears to reflect the trial court's and erred in denying Salais's request for a 30–day extension denial of that motion, but docket-sheet entries are not “of- pursuant to section 74.351(c) of the Texas Civil Practice and record” rulings. Any order or judgment, to be effective, must Remedies Code. be entered of record. Kocman v. Kocman, 581 S.W.2d 516, 518 (Tex.Civ.App.-Waco 1979, no writ); see also Willis v. Nucor Corp., 282 S.W.3d 536, 543 (Tex.App.-Waco 2008, DISMISSAL no pet.). © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010) Section 74.351 of the Civil Practices and Remedies Code The report must include the expert's opinion on each of the provides that within 120 days of filing, a claimant must three elements that the statute identifies: standard of care, serve a curriculum vitae and one or more expert reports breach, and causal relationship. Bowie, 79 S.W.3d at 52; regarding every defendant against whom a health care Palacios, 46 S.W.3d at 878. A report cannot merely state the claim is asserted. TEX. CIV. PRAC. & REM.CODE ANN. expert's conclusions about these elements. Bowie, 79 S.W.3d § 74.351(a) (Vernon Supp. 2009). “Section 74.351 has at 52; Palacios, 46 S.W.3d at 879. “Rather, the expert must numerous subparts, including: explain the basis of his statements to link his conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999). • subpart (b) requiring trial courts to dismiss a claim with prejudice and award fees if “an expert report has not been We review a trial court's order dismissing a claim for failure served” by the statutory deadline; to comply with the expert report requirements under an abuse-of-discretion standard. Bowie, 79 S.W.3d at 52; Palacios, • subpart (c) allowing a 30–day extension of the deadline if a 46 S.W.3d at 878. Expert reports that omit at least one of report is found inadequate; and the three specifically enumerated requirements of an expert report cannot constitute a good faith effort to meet the *538 • subpart (l ) providing that a motion challenging a statutory requirements. See Jernigan v. Langley, 195 S.W.3d report's adequacy should be granted only if the report does 91, 94 (Tex.2006); Palacios, 46 S.W.3d at 879. not represent a good-faith effort to comply with the statute.” Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex.2008) Salais provided two reports to serve as her expert report. (footnotes omitted); TEX. CIV. PRAC. & REM.CODE ANN. One report was prepared by James Wohlers, a paramedic § 74.351(b), (c), (l ) (Vernon Supp. 2009). from Nebraska, which Salais alleged addressed the expert report elements of the standard of care and the breach of that When considering a motion to dismiss under section 74.351, standard. The other report was prepared by Donald Winston, the issue for the trial court is whether the report represents a a physician from Houston. Salais alleged Dr. Winston's report good-faith effort to comply with the statutory definition of an addressed the causation element. TDADS complains, and I expert report. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d agree, that Dr. Winston's report wholly fails to address the 48, 52 (Tex.2002); American Transitional Care Ctrs. of Tex., causation element. Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). An “expert report” means: Assuming without deciding that Dr. Winston is otherwise qualified to render an opinion on causation, he does not. Dr. A written report by an expert that Winston states in his report that he reviewed the autopsy provides a fair summary of the expert's report of Ruben Gonzalez and the death certificate. Then, opinions as of the date of the report he simply states that, although he disagrees with the nine regarding the applicable standards of pathologists on whether Gonzalez was in part responsible care, the manner in which the care for his own death, he agrees with them in their conclusion rendered by the physician or health that it was homicide caused by restraint and mechanical care provider failed to meet the asphyxiation “imposed on him by the three Mexia State standards and the causal relationship School employees.” between that failure and the injury, harm, or damages claimed. *539 What Dr. Winston fails to do is draw the connection or explain the causal link between the negligent actions of TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6) a specific health care provider (the elements of standard of (Vernon Supp. 2009). To constitute a “good-faith effort,” the care and breach as described by Wohlers, the other purported report must discuss the standard of care, breach, and causation expert) and the damages/injury (Gonzalez's death). In other with sufficient specificity to fulfill two purposes: (1) to inform words, his report on causation must make the connection the defendant of the specific conduct the plaintiff has called that the death by mechanical asphyxiation was caused by the into question; and (2) to provide a basis for the trial court to conduct described by Wohlers, assuming that was adequately conclude that the claims have merit. Bowie, 79 S.W.3d at 52; presented in the other expert report. See Bowie, 79 S.W.3d Palacios, 46 S.W.3d at 879. at 53. Because Dr. Winston did not indicate he had reviewed © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010) parties agree and the trial court's docket sheet indicates that a the other purported expert's report, this required connection request for a 30–day extension was denied. Section 74.351(c) is simply missing. Further, it is impermissible to infer that provides in part that the trial court may grant one 30–day the conduct referenced in one report is the basis for the extension to the claimant to cure a deficiency in an expert conclusions in the other report. See Austin Heart, P.A. v. report. Id. The term “may” as used in subsection (c) vests the Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.). trial court with discretion to grant a 30–day extension. Bosch v. Wilbarger Gen. Hosp., 223 S.W.3d 460, 465 (Tex.App.- Dr. Winston's report is similar to an expert report discussed in Amarillo 2006, pet. denied); Hardy v. Marsh, 170 S.W.3d Shaw v. B.M.W. Healthcare, Inc., 100 S.W.3d 8 (Tex.App.- 865, 870–71 (Tex.App.-Texarkana 2005, no pet.). Tyler 2002, pet. denied). In Shaw, the Shaws filed two expert reports to address the three elements, one from a physician I assume without deciding that once the trial court determines and one from a registered nurse. The Shaws agreed that the that the report furnished *540 did not constitute a good faith physician's report did not set out the applicable standards of effort to meet the requirements of an expert report, the trial care or address how the defendants breached any standards. court can, nevertheless, grant a 30–day extension to cure the They argued, however, that those omissions were irrelevant deficiency. To grant such an extension, the trial court would because the physician only rendered an opinion on the cause have to consider the totality of the circumstances surrounding of death. Citing to Palacios, the Tyler Court of Appeals the preparation of the report, such as the difficulty, if any, held that because there was no discussion in the report as encountered by the plaintiff in obtaining the necessary experts to the applicable standard of care and any breaches of that or in getting the medical records necessary for the expert to standard, an opinion solely addressing the cause of death did review, the diligence of the plaintiff in securing an expert on not satisfy the statutory requirements of an expert report. the specific type of healthcare liability claim, whether a 30– Shaw, 100 S.W.3d at 13 (citing Palacios, 46 S.W.3d at day extension would have allowed the plaintiff to cure the 879). Like the report in Shaw, Dr. Winston's report only defect, and the extent of the deficiency in the proffered report. addressed Gonzalez's cause of death without a link between This list of considerations is by no means exhaustive. the alleged breach and the injury. Accordingly, I would hold that Dr. Winston's report does not meet the requirement of But in this case, we have not been provided any record an expert report because there is nothing in the report that from which we could review the trial court's determination. addresses the causal connection between the breach by the Because we have no record to review, Salais is unable to Mexia State School employees of the standard of care as support the complaint that the trial court abused its discretion allegedly contained in Wohlers's report and the injury, the in failing to grant a 30–day extension. See In the Interest death of Gonzalez, claimed. The causation element has been of D.W., 249 S.W.3d 625, 648 (Tex.App.-Fort Worth 2008, omitted from the report. no pet.) (because no record of hearing on motion to extend dismissal deadline, court presumes evidence supported trial Because Salais's expert reports omit at least one of the three court's ruling and no abuse of discretion shown). specifically enumerated requirements of subsection (r)(6), they cannot constitute a good faith effort to meet those Salais's second issue should be overruled. requirements. I need not decide TDADS's objections to Wohlers's report. Accordingly, because the trial court did not abuse its discretion in granting TDADS's motion to dismiss Salais's suit against TDADS, Salais's first issue should be CONCLUSION overruled. Having overruled each issue, I would affirm the interlocutory order of dismissal of the trial court. Because the Court does not, I respectfully dissent. CONTINUANCE Salais further argues that should we determine the reports All Citations were deficient, we should remand the matter back to the trial court for a 30–day extension. See TEX. CIV. PRAC. & 323 S.W.3d 527 REM.CODE ANN. § 74.351(c) (Vernon Supp. 2009). The © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010) 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 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) to file required expert report is reviewed for an abuse of discretion. V.T.C.A., Civil Practice & 451 S.W.3d 535 Remedies Code § 74.351(a). Court of Appeals of Texas, El Paso. Cases that cite this headnote TENET HOSPITALS LIMITED, a Texas Limited Partnership, d/b/ [2] Appeal and Error a/ Sierra Medical Center, Appellant, Abuse of discretion v. A trial court only “abuses its discretion” when Mariva J. BARAJAS, Appellee. it acts in an unreasonable or arbitrary manner, without reference to any guiding rules or No. 08–14–00048–CV. | Nov. 21, 2014. principles. Synopsis Cases that cite this headnote Background: Patient sued hospital, alleging medical negligence from allowing her “to drop to the floor” after [3] Appeal and Error knee surgery. Hospital filed motion to dismiss, challenging Abuse of discretion sufficiency of the patient's expert reports. The County Court at Law No. 5, El Paso County, Carlos Villa, J., denied motion, A trial court acts arbitrarily and unreasonably and hospital appealed. if it could have reached only one decision, but instead reached a different one. Cases that cite this headnote Holdings: The Court of Appeals, Yvonne T. Rodriguez, J., held that: [4] Appeal and Error Abuse of discretion [1] registered nurse was not qualified to render an expert opinion on applicable standard of care; A trial court “abuses its discretion” when it fails to analyze or apply the law correctly. [2] first orthopedic surgeon was not qualified to render expert Cases that cite this headnote opinion on applicable standard of care; [3] second orthopedic surgeon was qualified to offer an expert [5] Appeal and Error opinion regarding accepted standards of health care; and Abuse of discretion A trial court does not abuse its discretion merely [4] surgeons' reports represented an objective good faith effort because it decides a matter within its discretion to provide a fair summary of the causal relationship between differently than a reviewing court. hospital's actions and patient's injury. Cases that cite this headnote Affirmed in part, reversed in part, and remanded. [6] Health Affidavits of merit or meritorious defense; expert affidavits West Headnotes (24) If a plaintiff with a health care liability claim timely files an expert report and the defendant moves to dismiss because of the report's [1] Appeal and Error inadequacy, a trial court must grant the motion Rulings on Motions Relating to Pleadings only if it appears to the court, after hearing, A trial court's decision to grant or deny a motion that the report does not represent an objective to dismiss a health care liability claim for failure © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) good faith effort to comply with the definition Affidavits of merit or meritorious defense; of an expert report. V.T.C.A., Civil Practice & expert affidavits Remedies Code § 74.351(a)(l ). To avoid dismissal due to inadequacy of an expert's report under the Medical Liability Act, Cases that cite this headnote a plaintiff need not present evidence in the report as if it were actually litigating the merits. [7] Health V.T.C.A., Civil Practice & Remedies Code § Affidavits of merit or meritorious defense; 74.351(r)(6). expert affidavits Cases that cite this headnote In determining the adequacy of an expert report under the Medical Liability Act, the only information relevant to the inquiry is within the [11] Health four corners of the document. V.T.C.A., Civil Affidavits of merit or meritorious defense; Practice & Remedies Code § 74.001 et seq. expert affidavits The expert's report in a medical malpractice Cases that cite this headnote action can be informal, that is, the information in the report does not have to meet the [8] Health same requirements as the evidence offered in Affidavits of merit or meritorious defense; a summary-judgment proceeding or at trial. expert affidavits V.T.C.A., Civil Practice & Remedies Code § For an expert's report to constitute a good- 74.351(r)(6). faith effort under the Medical Liability Act, the Cases that cite this headnote report must provide enough information to fulfill two purposes: first, the report must inform the defendant of the specific conduct the plaintiff [12] Evidence has called into question; second, the report must Due care and proper conduct in general provide a basis for the trial court to conclude that In determining whether a medical expert is the claims have merit. V.T.C.A., Civil Practice qualified to testify on a medical question & Remedies Code §§ 74.351(l ), 74.351(r)(6). in a health care liability claim, the trial court focus should be on whether the expert Cases that cite this headnote has knowledge, skill, experience, training, or education regarding the specific issue before the [9] Health court which would qualify the expert to give Affidavits of merit or meritorious defense; an opinion on that particular subject. V.T.C.A., expert affidavits Civil Practice & Remedies Code § 74.402. An expert report that merely states the expert's Cases that cite this headnote conclusions about the standard of care, breach, and causation does not constitute a good-faith effort under the Medical Liability Act; rather, the [13] Evidence expert must explain the basis of his statements Due care and proper conduct in general to link his conclusions to the facts. V.T.C.A., A medical expert from one specialty may be Civil Practice & Remedies Code §§ 74.351(a), qualified to provide an opinion in a health care 74.351(r)(6). liability claim if he has practical knowledge of what is commonly done by doctors of a different Cases that cite this headnote specialty, and if the subject matter is common to and equally recognized and developed in all [10] Health fields of practice, any physician familiar with the subject may testify as to the standard of care. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) V.T.C.A., Civil Practice & Remedies Code § Liability Act; nurse had worked in various 74.402(a). nursing positions at several acute care hospitals including defendant hospital, was senior director Cases that cite this headnote of occupational health at ambulatory clinic, and opined that assessment of whether more help [14] Health was needed should have been performed before Affidavits of merit or meritorious defense; attempting to move patient. V.T.C.A., Civil expert affidavits Practice & Remedies Code § 74.402(b)(2). For purposes of a health care liability claim, the Cases that cite this headnote medical expert's qualifications must appear in the expert report and cannot be inferred. V.T.C.A., Civil Practice & Remedies Code § 74.351. [18] Evidence Due care and proper conduct in general Cases that cite this headnote Proposed nursing expert witness was not actively practicing health care in rendering health care [15] Evidence services relevant to medical negligence claim Due care and proper conduct in general filed against hospital, after patient fell while being assisted by hospital floor nurse from chair Whether a witness is qualified to serve as an to walker, and thus, nurse was not qualified expert in a health care liability claim is within the to render an opinion on the standard of care; trial court's discretion. it was unclear whether nurse was licensed at Cases that cite this headnote the time she gave her expert testimony, and although nurse was a licensed, registered nurse, who was serving as a consulting health care [16] Health provider at time she gave her testimony, nothing Affidavits of merit or meritorious defense; in her curriculum vitae or report revealed that expert affidavits she served as a consulting health care provider An expert report by a person unqualified to at time the patient's claim arose. V.T.C.A., Civil testify does not constitute a good faith effort Practice & Remedies Code § 74.402(c)(2). to comply with the statutory definition of an expert report, under the Medical Liability Act. Cases that cite this headnote V.T.C.A., Civil Practice & Remedies Code § 74.351. [19] Health Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits Orthopedic surgeon was not actively practicing [17] Health health care at time patient's medical negligence Affidavits of merit or meritorious defense; claim arose against hospital, and therefore, he expert affidavits was not qualified to render expert opinion in Based upon her experience as a registered nurse his report on applicable standard of care for and detailed description of applicable standard of floor nurse furnishing post-surgical care to assist care for floor nurses contained in her report, trial obese hospital patients to ambulate from chair court could have reasonably concluded that nurse to walker; there was no indication surgeon was had “knowledge of accepted standards of care serving was a consultant health care provider for health care providers for the diagnosis, care, or training health care providers in same field or treatment of the illness, injury, or condition” at accredited educational institution at time involved in hospital patient's health care claim, patient's claim arose or at time he gave his as required to support finding that her report was testimony concerning the applicable standard of adequate as an expert report pursuant to Medical © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) care. V.T.C.A., Civil Practice & Remedies Code nurses or aides to assist patient to ambulate; § 74.402(c)(2). doctors stated in their opinion, that patient's fall, as result of breach of care, “was the Cases that cite this headnote proximate cause of the right patellar dislocation” and tearing that her doctor found in surgery. [20] Evidence V.T.C.A., Civil Practice & Remedies Code § Due care and proper conduct in general 74.351(r)(5)(C). Orthopedic surgeon was qualified on basis of Cases that cite this headnote training or experience to offer an expert opinion regarding accepted standards of health care of hospital floor nurses assisting hospital patients [23] Health post-surgery in patient's negligence action Proximate Cause stemming from her fall while being assisted For purposes of a health care liability claim, a from a chair to a walker; curriculum vitae and causal relationship is established by proof that report showed that surgeon was certified by the negligent act or omission was a substantial licensing agency, possessed substantial training factor in bringing about the harm, and that, or experience relevant to the claim, and was absent this act or omission, the harm would actively practicing health care, as he expressly not have occurred; the mere provision of some stated “I am an orthopedic surgeon,” and insight into the plaintiff's claims does not surgeon's statement that he reviewed patient's adequately address causation. case and was submitting his preliminary report established he was serving as consultant at time Cases that cite this headnote he gave his expert testimony. V.T.C.A., Civil Practice & Remedies Code § 74.402(b)(3). [24] Health Affidavits of merit or meritorious defense; Cases that cite this headnote expert affidavits For purposes of a health care liability claim, [21] Evidence the expert report must explain the basis for Cause and effect the causation opinions by linking the expert's A nurse is unqualified to provide expert opinion conclusions to the alleged breach. on causation in medical negligence action. V.T.C.A., Civil Practice & Remedies Code § 1 Cases that cite this headnote 74.351(r)(5)(C). Cases that cite this headnote Attorneys and Law Firms [22] Health *538 Walter L. Boyaki, Miranda & Boyaki, El Paso, TX, for Affidavits of merit or meritorious defense; Appellee. expert affidavits Physicians' expert reports were not conclusory, Ken Slavin, Kemp Smith, El Paso, TX, for Appellant. but, as required by Medical Liability Act, represented an objective good faith effort to Before McCLURE, C.J., RODRIGUEZ, J., and PARKS, provide a fair summary of causal relationship Judge, sitting by assignment. between hospital floor nurse's actions and post-surgical patient's injury from fall attributed to nurse's breach of standard of care by not assuring OPINION chair was locked before patient attempted to YVONNE T. RODRIGUEZ, Justice. stand and by not seeking assistance of other © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) Appellant, Tenet Hospitals Limited, d/b/a/ Sierra Medical Center, appeals the trial court's denial of its motion to dismiss Specifically, SMC argued that Drs. Allen and Arredondo Appellee Mariva Barajas's health care liability claim. Sierra were not qualified to offer opinions on the standard of care Medical Center (SMC) raises a single issue for our review. for registered nurses, and that their opinions as to causation For the following reasons, we affirm in part and reverse in were conclusory. SMC similarly contended Nurse Holguin part. was unqualified to opine on the standard of care for registered nurses in an acute care hospital setting, and that her report failed to adequately address the standard of care applicable to SMC's nursing staff and any alleged breaches. After a BACKGROUND hearing, the trial court overruled SMC's objections and denied On March 17, 2011, Barajas underwent a total right knee its motions to dismiss. This interlocutory appeal followed. replacement operation at SMC. The following day, while still SeeTEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) a patient at SMC, Barajas requested assistance to move from (West 2008). a recliner to the bedside commode. A nurse attempted to help Barajas get up with a walker; however, the recliner was not locked and Barajas “slid down” to the floor causing her DISCUSSION newly-operated knee to bend. A Hoyer lift was used to get Barajas, an obese patient, back into the hospital bed. After In its sole issue on appeal, SMC challenges the expert reports the nurse notified Dr. Alvaro Hernandez, the doctor who had filed by Barajas. Specifically, SMC contends that the expert performed Barajas's knee replacement, of the fall, no new reports are not authored by qualified experts and that the orders were given. reports are conclusory as to causation. On March 21, 2011, Barajas was discharged from SMC and sent to Las Palmas Rehab Hospital for therapy. On March 23, Standard of Review 2011, Barajas experienced some popping of the right knee, her therapy was stopped, and x-rays were taken. The x-ray [1] [2] [3] [4] [5] A trial court's decision to grant or deny report was normal. a motion to dismiss under Section 74.351 is reviewed for an abuse of discretion. See American Transitional Care Ctrs. of In April and May 2011, Barajas followed-up her care with Dr. Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Tenet Hernandez. On May 2, 2011, Barajas reported she was having Hospitals, Ltd. v. Boada, 304 S.W.3d 528, 533 (Tex.App.-El pain and x-rays were taken. Barajas was diagnosed with Paso 2009, pet. denied). A trial court only abuses its discretion right patellar dislocation. On May 5, 2011, Dr. Hernandez when it acts in an unreasonable or arbitrary manner, without performed right knee patellar dislocation surgery on Barajas. reference to any guiding rules or principles. See Walker v. On March 29, 2012, Barajas saw Dr. Charles Zaltz, Dr. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003); Boada, 304 S.W.3d Hernandez's partner, for a follow-up. In his medical note, at 533. A trial court acts arbitrarily and unreasonably if it Dr. Zaltz recorded that Barajas fell at SMC the day after could have reached only one decision, but instead reached her right total knee replacement surgery and stated that the a different one. See Teixeira v. Hall, 107 S.W.3d 805, 807 right patellar dislocation and disruption of Barajas's patellar (Tex.App.-Texarkana 2003, no pet.); Boada, 304 S.W.3d at mechanism found on May 2, 2011, was the result of her fall 533. A trial court also abuses its discretion when it fails to at SMC on March 18, 2011. analyze or apply the law correctly. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex.2007) (citing In re Kuntz, 124 In May 2013, Barajas sued SMC for medical negligence S.W.3d 179, 181 (Tex.2003)); Boada, 304 S.W.3d at 533. alleging that the hospital allowed Barajas “to drop to the floor However, a trial court does not abuse its discretion merely after the 3/17/11 surgery” and committed *539 “[o]ther acts because it decides a matter within its discretion differently and/or omissions of negligence.” Barajas timely served expert than a reviewing court. Downer v. Aquamarine Operators, reports and the curricula vitae of Registered Nurse Donna Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied,476 U.S. Holguin, and Drs. Rene Arredondo and John Allen. SMC 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). subsequently filed objections to the sufficiency of the three expert reports and moved to dismiss Barajas's claim. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) Applicable Law THE PROFFERED EXPERTS' QUALIFICATIONS [6] [7] “[A] claimant shall, not later than the 120th day after In Issue One, SMC argues that Nurse Holguin, and Drs. Allen the date each defendant's original answer is filed, serve on that and Arredondo lack the qualifications to provide opinions on party or the party's attorney one or more expert reports, with the standard of care for hospital floor nurses. SMC maintains a curriculum vitae of each expert listed in the report for each the curricula vitae and reports of the proffered experts fail to physician or health care provider against whom a liability satisfy the requirements of Section 74.402. claim is asserted.” SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) (West 2011). If a plaintiff timely files an To be qualified as a medical expert on whether a hospital expert report and the defendant moves to dismiss because of departed from an accepted standard of health care, the the report's inadequacy, a trial court must grant the motion proffered expert must satisfy the requirements of Section “only if it appears to the court, after hearing, that the report 74.402 of the Civil Practice and Remedies Code. SeeTEX. does not represent an objective good faith effort to comply CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)(B) (West with the definition of an expert report in Subsection (r)(6).” 2011). Section 74.402 provides that: Id. § 74.351(l ). The definition of an expert report requires that the report contain a fair summary of the expert's opinions (b) In a suit involving a health care liability claim against as of the date of the report regarding applicable standards of a health care provider, a person may qualify as an expert care, the manner in which the *540 care rendered by the witness on the issue of whether the health care provider physician or health care provider failed to meet the standards, departed from accepted standards of care only if the person: and the causal relationship between that failure and the injury, (1) is practicing health care in a field of practice that harm, or damages claimed. Id. § 74.351(r)(6) (West 2011). involves the same type of care or treatment as that As the “statute focuses on what the report discusses, the only delivered by the defendant health care provider, if the information relevant to the inquiry is within the four corners defendant health care provider is an individual, at the of the document.” Palacios, 46 S.W.3d at 878. time the testimony is given or was practicing that type [8] [9] [10] [11] “In setting out the expert's opinions on of health care at the time the claim arose; 1 each of those elements, the report must provide enough information to fulfill two purposes if it is to constitute a 1 We agree with the parties that this subsection of section good faith effort.”Id. at 879. The report must: (1) inform 74.402 is inapplicable in this case because the health care “the defendant of the specific conduct the plaintiff has called provider here is SMC, a hospital, and not an individual. into question;” and (2) “provide a basis for the trial court See Renaissance Healthcare Sys., Inc. v. Swan, 343 S.W.3d 571, 588 (Tex.App.-Beaumont 2011, no pet.); to conclude that the claims have merit.” Id. If a report TTHR, L.P. v. Coffman, 338 S.W.3d 103, 112 (Tex.App.- does not meet these purposes and omits any of the statutory Fort Worth 2011, no pet.). requirements, it does not constitute a good faith effort. Id. Nor does a report “that merely states the expert's conclusions (2) has knowledge of accepted standards of care for about the standard of care, breach, and causation” fulfill these health care providers for the diagnosis, care, or treatment purposes. Id. Rather, the expert must explain the basis of his of the illness, injury, or condition involved in the claim; statements to link his conclusions to the facts. Bowie Mem'l and Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). However, “a plaintiff need not present evidence in the report as if it were (3) is qualified on the basis of training or experience actually litigating the merits.” Palacios, 46 S.W.3d at 879. to offer an expert opinion regarding those accepted “The report can be informal,” that is, “the information in the standards of health care. report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at *541 (c) In determining whether a witness is trial.” Id. qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness: © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) Silvey, 247 S.W.3d 310, 314 (Tex.App.-El Paso 2007, no (1) is certified by a licensing agency of one or more pet.). An expert report by a person unqualified to testify states of the United States or a national professional does not constitute a good faith effort to comply with the certifying agency, or has other substantial training statutory definition of an expert report. Foster v. Zavala, or experience, in the area of health care relevant to 214 S.W.3d 106, 116 (Tex.App.-Eastland 2006, pet. denied) the claim; and (citing In re Windisch, 138 S.W.3d 507, 511 (Tex.App.- Amarillo 2004, orig. proceeding) (examining predecessor to (2) is actively practicing health care in rendering Section 74.351)). health care services relevant to the claim. TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b)(c) (West 2011). “Practicing health care” includes: Nurse Holguin's Report (1) training health care providers in the same field as the defendant health care provider at an accredited educational SMC contends Nurse Holguin is unqualified to testify institution; or as an expert on the standard of care for hospital floor nurses providing post-surgical care to patients in March (2) serving as a consulting health care provider and being 2011 because “Nurse Holguin does not meet the knowledge licensed, certified, or registered in the same field as the requirements of Section 74.402(b)(2).” SMC also asserts defendant health care provider. Nurse Holguin is not qualified to opine on the applicable standard of care based on her training and experience. Id. § 74.402(a). In essence, SMC argues Nurse Holguin does not satisfy *542 Section 74.402(b)(3). SeeTEX. CIV. PRAC. & [12] [13] Not every licensed physician is automatically REM.CODE ANN. § 74.402(b)(3) (West 2011). qualified to testify on every medical question. Tenet Hospitals Ltd. v. Love, 347 S.W.3d 743, 749–50 (Tex.App.-El Paso [17] Pursuant to Section 74.402(b)(2), Nurse Holguin may 2011, no pet.) (citing Broders v. Heise, 924 S.W.2d 148, 152 qualify as an expert witness on the issue of whether SMC (Tex.1996)). In determining whether a witness is qualified to departed from accepted standards of care only if she has testify as an expert, the trial court focus should be on whether “knowledge of accepted standards of care for health care the expert has “knowledge, skill, experience, training, or providers for the diagnosis, care, or treatment of the illness, education” regarding the specific issue before the court which injury, or condition involved in the claim[.]” Id. § 74.402(b) would qualify the expert to give an opinion on that particular (2). This case involves the post-operative care of an obese subject. Id. at 750. Accordingly, a medical expert from one hospital patient who had total right knee replacement surgery. specialty may be qualified to provide an opinion if he has Barajas's alleged that due to the negligence of SMC and its practical knowledge of what is commonly done by doctors of floor nurses she required additional knee surgery after SMC a different specialty. Id. If the subject matter is common to and its floor nurses failed to prevent her from falling to and equally recognized and developed in all fields of practice, the floor as she was assisted from a recliner to the bedside any physician familiar with the subject may testify as to commode. the standard of care. Caviglia v. Tate, 365 S.W.3d 804, 810 (Tex.App.-El Paso 2012, no pet.) (citing Keo v. Vu, 76 S.W.3d Nurse Holguin's curriculum vitae reflects that she has a 725, 732 (Tex.App.-Houston [1st Dist.] 2002, pet. denied)). B.S.N. and M.S.N., and that she has worked in various nursing positions at several acute care hospitals including [14] [15] [16] Nevertheless, the proffered medical expert's SMC. From 1991 to 1996, she held the title of Director of expertise must be evident from the four corners of his report Quality Management at Providence Memorial Hospital where and curriculum vitae. See generally Palacios, 46 S.W.3d she was in charge of quality management, risk management, at 878; Christus Health Southeast Texas v. Broussard, 267 safety, “ProvCare and Infection Control.” She also worked as S.W.3d 531, 536 (Tex.App.-Beaumont 2008, no pet.). The the Director of Nursing Services at a long-term care facility expert's qualifications must appear in the report and cannot where she oversaw all aspects of nursing client care. From be inferred. See Salais v. Texas Dep't of Aging & Disability 1999 to January 31, 2011, Nurse Holguin was the Senior Servs., 323 S.W.3d 527, 536 (Tex.App.-Waco 2010, pet. Director of Quality Improvement and Occupational Health denied). Whether a witness is qualified “to serve as an at an ambulatory clinic where she acted as the Director expert is within the trial court's discretion.” Palafox v. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) of Nursing, Infection Control Nurse, Safety Officer, and Director of the facility Safety Program. Had proper assessment been done prior to the unidentified staff member attempting to assist Ms. Barajas this In her expert report, we note Nurse Holguin does not unfortunate “fall” should not have occurred. The staff expressly state she is familiar with the standard of care for member failed to provide for this patient[']s safety. Ms. nurses for the prevention of falls of obese patients in a Barraza [sic] was provided with and signed a “Patient hospital setting nor does she state that she has knowledge Safety Tips” form on admission to the hospital. This form of the applicable standard of care. However, she does detail indicates that the patient is to: “Call for help before getting knowledge of what SMC floor nurses should have done when up from a chair or bed” and yet when Ms. Barajas did assisting an obese patient, who had recently had a total knee call for help she was not kept safe because the assisting replacement, move from a recliner to the bedside commode. person did not take into account all of the factors about Specifically, Nurse Holguin's expert report provides: her that would have indicated the need for the assistance of more than one person. A staff member skilled in the Next Nursing note is on 3–18–2011 1330 by April Hurtado postoperative care of Total Knee Patients should have (no clinical designation noted). According to the patient been called on to make a determination of what type of she had been “assisted up into a chair earlier by 6 or 7 staff assistance was needed if the person at the bedside was members.” The Nursing Note at 1330 states “Patient called unable to determine what would be safest for this patient. for assistance to bedside commode was sitting in recliner chair, attempted to help patient with walker and the chair Nursing Care of this newly operated orthopedic patient was was not locked, patient slid down to floor knee did bend, not appropriate/not adequate since the patient was not kept patient okay.” safe and ended up on the floor which was NOT the desired outcome of a transfer from a chair to a bedside commode. This event/fall occurred on 3–18–2011 the first day after the total knee replacement procedure. Any nursing staff Because of her experience as a registered nurse as set forth member entering this patients' room should have taken in her curriculum vitae and the detailed description of the note of the patient[']s size and could easily have asked applicable standard of care for floor nurses contained in her the patient how much assistance had been provided earlier report, the trial court could have reasonably concluded that to help her into the recliner chair. These two pieces of Nurse Holguin has “knowledge of accepted standards of care information would have provided the basis for indicating for health care providers for the diagnosis, care, or treatment whether more help was needed to safely assist this patient of the illness, injury, or condition involved in [Barajas's] rather than receiving assistance from one female staff, claim[.]” SeeTEX. CIV. PRAC. & REM.CODE ANN. § who was reportedly in a state of advanced pregnancy. The 74.402(b)(2). As such, we conclude Barajas satisfied Section patient reports that she asked whether more help should be 74.402(b)(2). summoned but was told by the person in the room that more help was not necessary. [18] To determine whether a witness is qualified “on the basis of training or experience,” the court shall consider The nurses note indicates that the “chair was not locked”— “whether, at the time the claim arose or at the time the another failure on the part of the staff member who testimony is given, the witness: (1) is certified by a licensing undertook this assist—not assuring that the chair would not agency ... or has other substantial training or experience, in move as the patient attempted to stand up from the sitting the area of health care relevant to the claim; and (2) is actively position to a standing position to use the walker to then practicing health care in rendering health care services move to the bedside commode. relevant to the claim.” TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(c) (West 2011). SMC argues Nurse Holguin *543 Instead of being safely moved from the chair to in not a qualified expert because “[she] is not a licensed nurse the bedside commode the patient went down to the floor and it is unclear whether she was a licensed nurse when she and the newly operated knee “bent”, according to the gave her opinions as her [curriculum vitae] does not show documentation. The staff member who had undertaken the when she was licensed.” SMC maintains Nurse Holguin's transfer did not keep the patient safe from going to the floor curriculum vitae shows she did not have substantial training and while going to the floor the knee bent. or experience as a hospital floor nurse at the time Barajas's claim arose on March 18, 2011, or on September 9, 2013, at ... © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) the time she gave her expert opinion. SMC also advances that objected to a nurse's qualifications to render an expert opinion Nurse Holguin's report and curriculum vitae do not reflect she because she failed to state that she actively practiced in a field was actively practicing health care at the time the claim arose requiring her to provide nursing care in a hospital setting. or at the time she gave her report. Id. at 690. After looking at the nurse's curriculum vitae and report, the appellate court found the trial court did not abuse Despite SMC's argument to the contrary, Nurse Holguin's its discretion in determining that a nurse was qualified to offer curriculum vitae clearly indicates she was certified by a an expert report. Id. The facts in Potts are distinguishable licensing agency on March 18, 2011, at the time Barajas's from the facts in this case. claim arose as it shows that she is licensed by the Texas Board of Nursing and that her license would expire on August In Potts, the trial court found no abuse of discretion because 31, 2013. Accordingly, Nurse *544 Holguin meets the first the nurse's curriculum vitae stated that “she is a ‘Nurse prong of section 74.402(c). Consultant/Expert Witness' and a ‘Quality Review Nurse’ for the Texas Department of Aging and Disability Services,” Under the second prong of Section 74.402(c), Nurse Holguin and both the curriculum vitae and report showed that “she must be “actively practicing health care in rendering health is licensed as a nurse and holds a number of nursing care services relevant to the claim.” Id. § 74.402(c)(2). certifications.” Id. Here, it is unclear whether Nurse Holguin SMC contends Nurse Holguin cannot meet the second prong was licensed at the time she gave her expert testimony because she was not actively practicing health care at any (September 9, 2013), as her curriculum vitae reflects that relevant time. the expiration date of her nursing license was August 31, 2013. Additionally, nothing in Nurse Holguin's curriculum Section 74.402(a) defines “practicing health care” as vitae or report reveal that she served as a consulting health including “(1) training health care providers in the same care provider at the time Barajas's claim arose. As such, we field as the defendant health care provider at an accredited conclude Nurse Holguin failed to satisfy the second prong educational institution; or (2) serving as a consulting health of section 74.402(c) and therefore, the trial court abused care provider and being licensed, certified, or registered its discretion in determining Nurse Holguin was qualified in the same field as the defendant health care provider.” to offer an expert report pursuant to Section 74.402(b)(3). Id. § 74.402(a)(1)-(2). While nothing in Nurse Holguin's SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b)(3). curriculum vitae or report indicate that she has experience training health care providers at an accredited education institution, they do show that she is a licensed, registered Dr. Allen's Report nurse, who is serving as a consulting health care provider. In her expert report, Nurse Holguin states, “I have reviewed Dr. Allen's curriculum vitae shows that he is a British trained the Nurses Notes and other portions of the Medical Record orthopaedic surgeon *545 and is actively licensed in New of ... Barajas.... In order to determine whether the Nursing Mexico. As part of his medical practice in the United States, Care provided to ... Barajas was appropriate on 3–18–2011 Dr. Allen has, in part, worked as an Orthopaedic Fellow when she was being assisted up out of a chair.” Thus, it is at Children's Hospital Medical Center and an Associate in clear Nurse Holguin was serving as a consulting health care Orthopaedics at Massachusetts General Hospital in Boston. provider at the time she gave her testimony in September He has served as an Instructor in Orthopaedics at Harvard 2013. 2 University. He has acted as a consultant for Liberty Mutual Rehabilitation Center and Eunice Kennedy Shriver Center 2 We note SMC does not dispute Barajas's statement that for Mental Retardation in Boston. He has worked as an Nurse Holguin served as nurse consultant expert witness. orthopaedic surgeon in various capacities in both the United States and United Kingdom. His current office is located in Relying on Certified EMS Inc. v. Potts, 355 S.W.3d 683, Albuquerque. 690 (Tex.App.-Houston [1st Dist.] 2011), aff'd,392 S.W.3d 625 (Tex.2013), Barajas argues that because Nurse Holguin In his report, Dr. Allen provided the following standard of was a licensed nurse at the time the claim arose and is a care: nurse consultant witness, she is sufficiently qualified to be an expert under Section 74.402(a)-(c). In Potts, the appellant © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) and procedures, requiring hospitals to staff certain specialists, The standard of care for the floor nurse at Sierra Medical or running a hospital. Id. at 751. Center is to use assistance (other personnel) to assist an obese patient back from an unlocked recliner chair to bed Here, the four corners of Dr. Allen's curriculum vitae and and to lock that chair before the patient attempts to stand report indicate he is an orthopaedic surgeon actively licensed up. in New Mexico, that he has an office in Albuquerque, and that he has worked as an orthopaedic surgeon in various The nurse at Sierra Medical Center breached the standard capacities. Moreover, Dr. Allen states that during his practice of care by not assuring the recliner chair was locked as an orthopaedic surgeon, he has evaluated patients who have before Ms. Barajas attempted to stand at around 1330 on fallen after surgery and that he has interacted with hospital 03/18/2011. The nurse also breached the standard of care nursing staff on pre- and post-operative fall prevention of by not seeking assistance of other nurses or aides to assist patients, which *546 included obese patients. Thus, unlike Ms. Barajas to ambulate from the chair to the bedside the experts in Love, Dr. Allen's curriculum vitae and report commode as she was an obese, newly postoperative knee explain why and how he is qualified to render an opinion on patient. the applicable standard of care. Dr. Allen states his education and experience are relevant to the review of the medical care Barajas received by nurses at SMC also argues Dr. Allen is unqualified to give expert SMC. He further states that: testimony because he is not actively practicing health care in rendering health care services related to the claim. SeeTEX. During the many years of [his] CIV. PRAC. & REM.CODE ANN. § 74.402(c)(2) (West orthopedic surgery practice [he has] 2011). As already discussed above, “practicing health care” evaluated patients who have fallen includes “(1) training health care providers in the same after surgery and ha[s] interacted with field as the defendant health care provider at an accredited hospital nursing staff on prevention educational institution; or (2) serving as a consulting health of falls by patients before and after care provider and being licensed, certified or registered in surgery, including patients who are the same field as the defendant health care provider.” Id. obese. § 74.402(a)(1)-(2). It is clear Dr. Allen's curriculum vitae reflects he is a licensed orthopaedic surgeon who, in the past, [19] SMC contends Dr. Allen “fails to meet the requirements has acted as a consultant health care provider and trained to qualify as an expert in this case” because the four corners orthopaedic students at Harvard. However, we do not find of his curriculum vitae and report fail to demonstrate that any indication he was serving as a consultant health care he is qualified to opine on the standard of care for hospital provider or training health care providers in the same field floor nurses furnishing post-surgical care to hospital patients at an accredited educational institution at the time Barajas's or that he was actively rendering medical care services when claim arose or at the time Dr. Allen gave his testimony. the claim arose in March 2011, or when he offered his opinion See Select Specialty Hospital–Houston Ltd. Partnership v. in September 2013. Although SMC relies on this Court's Simmons, No. 01–12–00658–CV, 2013 WL 3877696, at *5 n. decision in Love to support their argument, we find Love 2 (Tex.App.-Houston [1st Dist.] Jul 25, 2013, no pet.) (expert is distinguishable. In Love, we held the curricula vitae and nurse was qualified as her curriculum vitae demonstrated she reports of two physicians failed to show they were qualified was currently working as a nurse consultant). to opine on hospital administration procedures regarding staffing specialists and transferring patients because the Accordingly, we find the trial court abused its discretion in curricula vitae and reports contained only one sentence stating determining that Dr. Allen was qualified to opine on the that the experts were familiar with the responsibilities, duties, applicable standard of care and that he was actively practicing and expectations a hospital provides to its patients. Love, health care at the time the claim arose or his testimony was 347 S.W.3d at 750–51. We also noted the curricula vitae given as set out in sections 74.402(a) and (c). and reports merely recited that the doctors were specialists who served on various committees, but failed to demonstrate whether their experience involved setting hospital policies Dr. Arredondo's Report © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) [20] SMC challenges Dr. Arredondo's report on the discretion as the trial court could have reasonably concluded same grounds as Dr. Allen's report. SMC contends Dr. that Dr. Arredondo satisfied both prongs of Section 74.402(c) Arredondo's curriculum vitae “fails to provide information and determined that he was qualified as an expert under on his education, experience and training that qualifies him Section 74.402(b)(3). SeeTEX. CIV. PRAC. & REM.CODE to opine on hospital floor nurses assisting hospital patients ANN. § 74.402(c); Potts, 355 S.W.3d at 690 (finding no post-surgery.” SMC argues Dr. Arredondo is precluded from abuse of discretion in trial court's determination that nurse qualifying as an expert because he is not actively practicing was qualified to offer an expert report because her curriculum health care. vitae stated that “she is a ‘Nurse Consultant/Expert Witness' and a ‘Quality Review Nurse’ for the Texas Department of In determining whether Dr. Arredondo meets the Aging and Disability Services,” and both the curriculum vitae requirements of Section 74.402(b)(3), we look at whether he and report showed that “she is licensed as a nurse and holds is (1) certified by a licensing agency or has substantial training a number of nursing certifications”). or experience relevant to the claim, and (2) whether he is actively practicing health care relevant to the claim. SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.402(c). According CAUSATION to his curriculum vitae, Dr. Arredondo is licensed by the Texas State Board of Medical Examiners. From 1975 to 2009, [21] SMC contends the trial court abused its discretion Dr. Arredondo's private practice was limited to orthopaedic because the proffered expert reports are conclusory on the surgery and physical rehabilitation. In his expert report dated issue of causation. SMC also maintains Nurse Holguin's August 23, 2013, Dr. Arredondo states that he reviewed report is improper because she, as a non-physician, is not Barajas's case and was submitting his preliminary report. He legally qualified to opine on medical causation. We agree goes on to state that he is an orthopaedic surgeon, that he has that a nurse is not qualified to opine on medical causation. been an orthopaedic surgeon since 1975, and that he is board SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5) certified by the American Board of Orthopaedic Surgery. He (C) (West 2011); Boada, 304 S.W.3d at 543 (finding nurse also states that his education and experience are relevant to the unqualified to provide expert opinion on causation). review of medical care rendered by nurses at SMC to Barajas. In response, Barajas maintains Nurse Holguin's opinion is Like Dr. Allen, Dr. Arredondo explains that: “During the not on causation, but on the standard of care and breach many years of [his] orthopedic surgery practice, [he has] of that standard. We agree with Barajas. Nothing in Nurse evaluated patients who had falls after surgery. Over the many Holguin's report summarizes the causal relationship between years of [his] orthopedic surgery practice, [he has] interacted the breaches of the applicable standards of care and the with hospital floor nurses about prevention of *547 falls alleged injuries, harms, and damages suffered by Barajas. in obese, post-operative patients.” Dr. Arredondo also sets SeeTEX. CIV. PRAC. & REM.CODE ANN. §§ 74.351(r) forth the identical standard of care and explanation of how the (6), 74.403(a). Accordingly, SMC's contention is without standard of care was breached as provided by Dr. Allen in his merit. We now address the reports of Drs. Allen and expert report. Arredondo to determine whether their opinions on causation are conclusory. Dr. Arredondo's curriculum vitae and report show that he is certified by a licensing agency, and possesses substantial [22] SMC argues the reports of Drs. Allen and Arredondo do training or experience relevant to Barajas's claim. The not represent a good faith effort to comply with the statutory curriculum vitae and report also demonstrate Dr. Arredondo requirements. According to SMC, the opinions of Drs. Allen is actively practicing health care as he expressly states “I am and Arredondo are conclusory because “they wholly fail an orthopedic surgeon. I have been an orthopedic surgeon to provide any causal link between the bending of a knee since 1975. I am board certified by the American Board of from sliding down a chair and a right patellar dislocation of Orthopaedic Surgery.” Moreover, Dr. Arredondo's statement the knee diagnosed almost two months later.” SMC further that he has reviewed Barajas's case and was submitting his argues “[t]he reports ... are completely devoid of any factual preliminary report establishes he was serving as a consultant statements explaining how bending the knee caused the right at the time he gave his expert testimony. Based on the four patellar dislocation ... other than the conclusion that it did.” corners of the curriculum vitae and report, we find no abuse of © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) [23] [24] A causal relationship is established by proof chair to the bedside commode as she was an obese, newly that the negligent act or omission was a substantial factor post-operative knee patient.” Drs. Allen and Arredondo then in bringing about the harm, and that, absent this act or reference a note from Dr. Zaltz dated March 29, 2012, in omission, the harm would not have occurred. *548 Costello which Dr. Zaltz stated that Barajas fell down at SMC the v. Christus Santa Rosa Health Care Corp., 141 S.W.3d day after her right total knee surgery, and noted that the right 245, 249 (Tex.App.-San Antonio 2004, no pet.). The mere patellar dislocation and disruption of the patellar mechanism provision of some insight into the plaintiff's claims does not that was found on May 2, 2011, was the result of the March 18 adequately address causation. Wright, 79 S.W.3d at 53. Under fall. Drs. Allen and Arredondo expressly state that they agree Palacios, an expert report does not need to conclusively prove with Dr. Zaltz's opinion of the cause of Barajas's right patellar the case, however, we cannot infer causation. The report dislocation and that they agree with the statements made in cannot “merely state conclusions about any of the elements.” Nurse Holguin's report. Castillo v. August, 248 S.W.3d 874, 883 (Tex.App.-El Paso 2008, no pet.). There are no magic words required to establish We conclude that the reports of Drs. Allen and Arredondo causation. Wright, 79 S.W.3d at 53. However, the expert adequately discuss causation so as to inform SMC of the report must explain the basis for the causation opinions by conduct Barajas has called into question and to provide a basis linking the expert's conclusions to the alleged breach. Id. for the trial court to conclude that Barajas's claim has merit. See Palacios, 46 S.W.3d at 879. Drs. Allen and Arredondo's Drs. Allen and Arredondo's reports indicate the doctors reports on causation are not conclusory. The expert reports reviewed Barajas's medical records from SMC, Las Palmas state what should have been done by SMC and what happened Rehab Hospital, Las Palmas Medical Center, Orthopaedic as a result of their failure to adhere to the applicable Surgeons Associates, and Nurse Holguin's report. The doctors standard of care. Accordingly, we conclude Drs. Allen and state that in their opinion as orthopedic surgeons, “the fall Arredondo's reports represented an objective good faith effort that Ms. Barajas suffered” on March 18, 2011 at SMC “was to provide a fair summary of the causal relationship between the proximate cause of the right patellar dislocation” and SMC's actions and Barajas's injury. *549 SeeTEX. CIV. tearing “that Dr. Hernandez found” in surgery on May 5, PRAC. & REM.CODE ANN. § 74.351(l ); Palacios, 46 2011. According to both physicians, the March 18, 2011 fall S.W.3d at 878–79. “resulted in pain to Ms. Barajas,” the need for right knee repair surgery on May 5, 2011, and “rehabilitation, with Lastly, SMC contends Drs. Allen and Arredondo's reports are associated medical costs.” also conclusory because they fail to rule out other potential causes of Barajas's injury. SMC points to Drs. Allen and In their reports, Drs. Allen and Arredondo provide an Arredondo's reference to a note in Barajas's medical record “Overview of Medical Care of [Barajas]” which contains indicating that during rehab therapy she experienced popping excerpts from Barajas's medical records, including SMC's of her right knee. However, as correctly noted by Barajas, nursing notes. Both reports note that after having had right nothing in Section 74.351 requires a preliminary expert report total knee replacement surgery, Barajas fell and bent her to rule out every possible cause of injury, harm, or damages. newly-operated knee when she was assisted out of an See Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys. unlocked recliner chair on March 18, 2011. At that time, v. Wallace, 278 S.W.3d 552, 562–63 (Tex.App.-Dallas 2009, it was noted that Barajas was crying. On March 20, 2011, no pet.); TEX. CIV. PRAC. & REM.CODE ANN. § 74.35l(s) Barajas was reported to be aching and unsteady. Both expert (West 2011) (limiting discovery before an expert report and reports also note that Dr. Hernandez's discharge summary curriculum vitae are filed). Moreover, a plaintiff need not dated March 25, 2011, does not state he was informed Barajas present evidence in the report as if it were actually litigating had fallen and bent her newly-operated knee. the merits. Wright, 79 S.W.3d at 52. As the Palacios court stated, “the information in the report does not have to meet In the “Opinions” section of their reports, after setting forth the same requirements as the evidence offered in a summary- the applicable standard of care, Drs. Allen and Arredondo judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879. state that the SMC nurse breached the standard of care by “not assuring the recliner chair was locked before Ms. Barajas The trial court therefore did not abuse its discretion in attempted to stand” and “by not seeking assistance of other overruling SMC's objections regarding causation and denying nurses or aides to assist Ms. Barajas to ambulate from the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Tenet Hospitals Ltd. v. Barajas, 451 S.W.3d 535 (2014) hospital's motion to dismiss, the appellate court determined its motions to dismiss.Palacios, 46 S.W.3d at 875; Boada, the appropriate relief was to remand case to trial court for 304 S.W.3d at 533. consideration of whether deficiencies were curable and to determine whether to grant extension of time). Issue One is sustained in part and overruled in part. CONCLUSION REMEDY We reverse the trial court's judgment as to Nurse Holguin's Because we have concluded that the trial court abused its and Dr. Allen's expert reports and remand for proceedings discretion in overruling the objections to Nurse Holguin's consistent with this opinion. We affirm the trial court's and Dr. Allen's reports on the basis of their respective judgment as it pertains to the expert report of Dr. Arredondo. qualifications, and thereby, in denying SMC's motion to dismiss, we remand the case to the trial court to consider granting the thirty-day extension request by Barajas to cure the deficiencies in Nurse Holguin's and Dr. Allen's reports. All Citations See Love, 347 S.W.3d at 757 (after concluding trial court erred in overruling objections to expert report and in denying 451 S.W.3d 535 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. 13 TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011) 267 Ed. Law Rep. 913 Appellate court would review de novo the applicability of Texas Medical Liability Act 338 S.W.3d 103 (TMLA) to patient's claim for wrongful release Court of Appeals of Texas, of medical information against hospital, which Fort Worth. released laboratory report on patient's urine TTHR, L.P. d/b/a Presbyterian sample to university's police department, thereby Hospital of Denton, Appellant, causing patient to be suspended because v. laboratory report indicated a violation of the school's code of student conduct. V.T.C.A., Civil Amanda COFFMAN, Appellee. Practice & Remedies Code § 74.351. No. 02–10–00162–CV. | March 17, 2011. Cases that cite this headnote Synopsis Background: Patient, who submitted a urine sample as part [2] Health of her treatment at hospital, filed suit against hospital, who Actions and Proceedings released laboratory report on the sample to university's police Whether a claim is a health care liability claim department, and against university, which suspended patient under Texas Medical Liability Act (TMLA) and removed her from student housing because laboratory depends on the underlying nature of the claim report indicated a violation of the school's code of student being made, and party may not avoid the conduct. The 211th District Court, Denton County, L. Dee requirements of the TMLA through artful Shipman, J., denied hospital's motion to dismiss, and hospital pleading. V.T.C.A., Civil Practice & Remedies appealed. Code § 74.351. 2 Cases that cite this headnote Holdings: The Court of Appeals, Lee Gabriel, J., held that: [3] Health [1] violation of a patient's confidentiality is actionable as a Actions and Proceedings health care liability claim, and subject to requirements of When determining if claim is health care liability Texas Medical Liability Act (TMLA); claim subject to requirements under Texas Medical Liability Act (TMLA), courts must look [2] wrongful release of medical information is departure from to the act or omission that forms the basis accepted standards of professional or administrative services of the complaint to determine whether it is directly related to health care under TMLA; and either an inseparable part of the rendition of health care services or based on a breach of [3] an expert report was required notwithstanding patient's the standard of care applicable to health care claim that it would require physician to render a legal opinion. providers. V.T.C.A., Civil Practice & Remedies Code § 74.351. Reversed and remanded. 6 Cases that cite this headnote Meier, J., filed dissenting opinion. [4] Health Actions and Proceedings If the factual allegations are related to medical West Headnotes (16) treatment provided by the defendant and constitute an inseparable part of the defendant's [1] Appeal and Error rendition of medical services, then the plaintiff's Cases Triable in Appellate Court claim is a health care liability claim subject to the requirements of the Texas Medical Liability Act © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011) 267 Ed. Law Rep. 913 (TMLA). V.T.C.A., Civil Practice & Remedies and maintain the confidentiality of medical Code § 74.351. records is directly related to the patient's health care. V.T.C.A., Occupations Code § 159.002(d); 2 Cases that cite this headnote V.T.C.A., Civil Practice & Remedies Code § 74.001. [5] Health 2 Cases that cite this headnote Actions and Proceedings Texas Medical Liability Act (TMLA) does not mandate that the injury itself occur during the [9] Health patient's medical care, just that it be directly Actions and Proceedings related to acts that occurred during the patient's The wrongful release of medical information health care. V.T.C.A., Civil Practice & Remedies is a departure from accepted standards of Code § 74.001(a)(10, 13). professional or administrative services directly related to health care under the Texas Medical 1 Cases that cite this headnote Liability Act (TMLA). V.T.C.A., Civil Practice & Remedies Code §§ 74.001(a)(1, 10), 74.351. [6] Health 2 Cases that cite this headnote Confidentiality; patient records Duty of confidentiality arises during the patient's medical care and must be maintained as long [10] Health as the provider possesses the medical records. Necessity and existence of injury V.T.C.A., Occupations Code § 159.002(d); 22 Term “injury,” as used in Texas Medical TAC § 165.1(b). Liability Act (TMLA), did not mean just physical injury. V.T.C.A., Civil Practice & Cases that cite this headnote Remedies Code § 74.001(a)(13). Cases that cite this headnote [7] Health Confidentiality; patient records Health care providers owe the duty of [11] Health confidentiality to their patients as part of the care Affidavits of merit or meritorious defense; they provide. expert affidavits Texas Medical Liability Act (TMLA) required Cases that cite this headnote patient to submit, within 120 days of filing her petition, an expert report supporting her [8] Health health care liability claim against hospital for Actions and Proceedings wrongful release of medical information, despite patient's claim that such a report was not possible Violation of a patient's confidentiality is because it required a physician to render a actionable as a health care liability claim, legal opinion; the standard of care regarding and subject to requirements of Texas Medical confidentiality of medical information was a Liability Act (TMLA), regardless of whether it standard that applied to all health care providers, occurred while the patient was in the treatment and health care providers were expected to know room or after she had left the facility; provider's the laws applicable to their profession, such that duty to create records is directly related to the any otherwise qualified expert could offer an acts performed by the health care provider or opinion on the standard of care owed to patient. treatments received by the patient, the duty to V.T.C.A., Civil Practice & Remedies Code §§ maintain the confidentiality of those records is 74.351, 74.402, 74.403(a). inseparable from the duty to maintain the records themselves, and therefore, the duty to create © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011) 267 Ed. Law Rep. 913 physician to opine as to causation of patient's 2 Cases that cite this headnote damages. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(5)(C). [12] Health Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits Because patient did not sue any individual [15] Health providers, but only the hospital, which released Actions and Proceedings laboratory report on patient's urine sample to Recasting a claim as something other than a university's police department, thereby causing health care liability claim does not excuse the patient to be suspended because report indicated plaintiff from meeting the requirements of the violation of school's code of student conduct, a Texas Medical Liability Act (TMLA). V.T.C.A., qualified expert, for purposes of expert report Civil Practice & Remedies Code § 74.001. requirement under Texas Medical Liability Act (TMLA), would be an individual who had Cases that cite this headnote knowledge of the accepted standards of care for providers regarding the confidentiality of [16] Evidence medical records and the necessary training or Due care and proper conduct in general experience to offer an expert opinion. V.T.C.A., If the subject matter is common and equally Civil Practice & Remedies Code §§ 74.001, recognized and developed in all fields of 74.402(b). practice, any physician familiar with the subject Cases that cite this headnote may testify as to the standard of care. Cases that cite this headnote [13] Health Affidavits of merit or meritorious defense; expert affidavits Expert report requirement of Texas Medical Attorneys and Law Firms Liability Act (TMLA) is a procedural *106 Jeffrey F. Wood, Jones Carr McGoldrick, L.L.P., requirement that all claimants must complete in Dallas, TX, for Appellant. order to continue with their claims. V.T.C.A., Civil Practice & Remedies Code §§ 74.402, Johannes B. Massar, Massar & Massar, L.L.P., Dallas, TX, 74.403(a). for Appellee. Cases that cite this headnote PANEL: GARDNER, MEIER, and GABRIEL, JJ. [14] Health Affidavits of merit or meritorious defense; OPINION expert affidavits LEE GABRIEL, Justice. Alleged absurdity of requiring a physician to opine as to the civil damages that patient suffered TTHR, L.P. d/b/a Presbyterian Hospital of Denton as result of hospital's disclosure of her medical (Presbyterian) appeals the denial of its motion to dismiss information did not transform patient's health filed pursuant to Texas Civil Practice and Remedies Code care liability claim against the hospital, alleging section 74.351(b). See Tex. Civ. Prac. & Rem.Code Ann. wrongful release of medical information, into § 74.351 (Vernon 2011). Presbyterian asserts that the suit another category of claim that did not require filed against it by Appellee Amanda Coffman was a health an expert report under Texas Medical Liability care liability claim, subject to the requirements of chapter Act (TMLA); TMLA nonetheless required a 74 of the civil practice and remedies code. Because we © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011) 267 Ed. Law Rep. 913 agree with Presbyterian that Coffman's claim is a health St. Luke's Episcopal Hosp., 319 S.W.3d 658, 663 (Tex.2010); care liability claim, we reverse the trial court's order, render Fudge v. Wall, 308 S.W.3d 458, 460 (Tex.App.-Dallas 2010, judgment dismissing Coffman's claims against Presbyterian, no pet.). and remand the case for a determination by the trial court of costs and attorney's fees to be awarded to Presbyterian. [2] [3] [4] Whether a claim is a health care liability claim depends on the underlying nature of the claim being made. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex.2004). A party may not avoid the requirements of the Background TMLA through artful pleading. Diversicare Gen. Partner, Coffman sought treatment at Presbyterian on November 5, Inc. v. Rubio, 185 S.W.3d 842, 854 (Tex.2005); Garland 2007. As part of her treatment, she submitted a urine sample Cmty. Hosp., 156 S.W.3d at 543. Courts must look to the act for testing. Presbyterian staff released the laboratory report or omission that forms the basis of the complaint to determine on the sample to the University of North Texas Police whether it is either an inseparable part of the rendition of Department, who then released it to the University of North health care services or based on a breach of the standard Texas, where Coffman was a student. The laboratory report of care applicable to health care providers. Garland Cmty. indicated a violation of the school's code of student conduct, Hosp., 156 S.W.3d at 544. If the factual allegations are related and Coffman was suspended and removed from student to medical treatment provided by the defendant and constitute housing. an inseparable part of the defendant's rendition of medical services, then the plaintiff's claim is a health care liability Coffman claims the release of her test results was negligent claim subject to the requirements of the TMLA. Marks, 319 and a violation of section 159.002 of the occupations S.W.3d at 664. code, which designates medical records as confidential and privileged. See Tex. Occ.Code Ann. § 159.002 (Vernon 2004). Coffman filed suit against Presbyterian and the Discussion University of North Texas. The University is not a party to this appeal. The sole issue before us is whether a claim for the wrongful release of medical information is a health care liability claim Approximately five months after Coffman filed her petition, under the TMLA. See Tex. Civ. Prac. & Rem.Code Ann. Presbyterian moved for dismissal of Coffman's claims against §§ 74.001–.507 (Vernon 2011). If it is a health care liability it, arguing that Coffman failed to timely serve an expert claim, Coffman was required to serve an expert report within report as required by chapter 74 of the civil practice and 120 days of filing her original petition. See id. § 74.351. The remedies code, also known as the Texas Medical Liability Act TMLA requires the dismissal of the claim if a report is not (TMLA). See Tex. Civ. Prac. & Rem.Code Ann. § 74.351. served, and the statute does not grant the court the ability Coffman argued that a report is unnecessary because the to offer an extension for failing to serve a report within the TMLA only applies to health care liability claims and her statutory timeframe. See Maris v. Hendricks, 262 S.W.3d 379, claims are not health care liability claims. The trial court 384 (Tex.App.-Fort Worth 2008, pet. denied) (noting that denied Presbyterian's motion to dismiss. Presbyterian filed statutory extension to cure a deficient report does not apply this appeal. when no report is served). The parties agree that if it is not a health care liability claim, Coffman was not required to serve such a report. Standard of Review Coffman argues that no report is necessary because she filed [1] Although appellate courts review a trial court's decision a common law claim of negligence and a claim under the to grant or deny a motion to dismiss for failure to timely serve occupations code. As we stated above, we are required to look a section 74.351(a) expert report for an abuse of discretion, at the underlying act or omission forming the basis of the see Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006), complaint. See Garland Cmty. Hosp., 156 S.W.3d at 543–44. the issue presented here requires a determination *107 of If the claim falls under the definition of a health care liability whether the TMLA applies to Coffman's claims. We therefore claim, it is subject to the TMLA, regardless of how it was review the applicability of the TMLA de novo. See Marks v. pleaded. Id. at 544. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011) 267 Ed. Law Rep. 913 241.053 (allowing for the denial, suspension, or revocation TMLA defines “health care liability claim” as of a hospital's license for violating section 241.155); 25 Tex. Admin. Code § 133.121 (2007) (Tex. Dep't of State a cause of action against a health care Health Servs., Enforcement Action) (allowing for the denial, provider or physician for treatment, suspension, or revocation of a hospital's license for violating lack of treatment, or other claimed section 241.155); 42 C.F.R. §§ 482.13(d) (conditioning departure from accepted standards of participation in Medicare and Medicaid on the protection medical care, or health care, or safety of patient's right to confidentiality); 482.24 (conditioning or professional or administrative participation in Medicare and Medicaid on maintaining services directly related to health care, patient's medical records). Because confidentiality of records which proximately results in injury to is required “as a condition of maintaining the ... health or death of a claimant, whether the care provider's license, accreditation status, or certification claimant's claim or cause of action to participate in state or federal health care programs,” the sounds in tort or contract. duty to maintain the confidentiality of patient records is a professional or administrative service as defined by the Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(13). “Health TMLA. See Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a) care” is defined to mean “any act or treatment performed or (24) (defining professional or administrative services). furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient The duty of confidentiality is also directly related to health during the patient's medical care, treatment, or confinement.” care based on its definition in the TMLA. See Tex. Civ. Id. § 74.001(a)(10). “Professional or administrative services” Prac. & Rem.Code. Ann. § 74.001(a)(10) (defining “health is defined as “those duties or services that a physician or care”). A patient's medical records are required to be health care provider is required to provide as a condition of created during the patient's care. See 22 Tex. Admin. Code maintaining the physician's or health care provider's license, § 165.1(a) (2010) (Tex. Med. Board, Medical Records). accreditation status, or certification to participate in *108 They must memorialize each patient encounter, including state or federal health care programs.” Id. § 74.001(a)(24). all assessments, impressions, and diagnoses. Id. The duty to create records is directly related to the acts performed A. Professional or Administrative Services Directly by the health care provider or treatments received by the Related to Health Care patient. The duty to maintain the confidentiality of those Health care providers are required under a number of statutes records is inseparable from the duty to maintain the records to maintain the confidentiality of patient records. See, e.g., themselves. Therefore, the duty to create and maintain Tex. Health & Safety Code Ann. §§ 181.152 (Vernon the confidentiality of medical records is directly related 2010) (disallowing disclosure of protected health information to the patient's health care. Cf. Fudge, 308 S.W.3d at for marketing purposes without patient's consent), 241.155 463–64 (holding that letter written by counselor to social (Vernon 2010) (requiring a hospital to “adopt and implement worker regarding counselor's “professional assessment and reasonable safeguards for the security of all health care evaluation” of child was “clearly” related to and “inseparable information it maintains”); Tex. Occ.Code Ann. § 159.002(b) from” treatment of child). (requiring records of treatment to be “confidential and privileged and may not be disclosed”); 42 C.F.R. § 482.13(d) [5] [6] [7] [8] Coffman argues that the injury did not (2004) (making confidentiality of records a condition of occur during her medical care, as required by the TMLA. See participation in Medicare and Medicaid); 42 C.F.R. § 482.24 Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a)(1). However, (2004) (same). Failure to do so can result in the loss of the the statute does not mandate that the injury itself occur during hospital's license, accreditation, and ability to participate in the patient's medical care, just that it be directly related to state or federal health care program. See, e.g., Tex. Health & acts that occurred during the patient's *109 health care. Id. § Safety Code Ann. §§ 181.202 (allowing for the revocation of 74.001(a)(10), (13) (defining “health care liability claim” as a provider's license for a pattern or practice of violating section “claimed departure from accepted standards of ... professional 181.152), 181.203 (allowing for the exclusion of a hospital or administrative services directly related to [‘any act or from participating in state-funded health care programs treatment performed or furnished ... for, to, or on behalf for a pattern or practice of violating section 181.152), of a patient during the patient's medical care’]”). Coffman's © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011) 267 Ed. Law Rep. 913 urine analysis occurred during, and as a part of, her care at Presbyterian. The results of the analysis were recorded in her medical records, as a professional or administrative B. Injury or Death service directly related to the care she received. The duty of [10] Coffman argues that the TMLA does not apply because confidentiality arises during the patient's medical care and “injury” as used in the statute can only be understood as must be maintained as long as the provider possesses the meaning physical injury. Coffman relies on Thomas v. State, medical records. See, e.g., Tex. Occ.Code. Ann. § 159.002(d) 923 S.W.2d 645 (Tex.App.-Houston [1st Dist.] 1995, no (stating that confidentiality “continues to apply ... regardless pet.), and Pallares v. Magic Valley Electric Co-op., Inc., 267 of when the patient receives the services of a physician”); S.W.3d 67 (Tex.App.-Corpus Christi 2008, pet. denied). 22 Tex. Admin. Code § 165.1(b) (2010) (Tex. Med. Board, Medical Records) (requiring physicians to maintain medical Thomas involved a felony conviction for failure to stop and records for seven years and destruction of such records “shall render aid. 923 S.W.2d at 647. The statute required the “driver be done in a manner that ensures continued confidentiality”); *110 of a vehicle involved in an accident resulting in injury 42 C.F.R. § 482.24 (requiring medical records to be retained to or death of any person” to return to the scene of the for five years as a condition for participating in Medicare and accident. 1 Act of 1947, 50th Leg., R.S., ch. 421, 1947 Tex. Medicaid). Providers owe the duty of confidentiality to their Gen. Laws 967, repealed by Act of April 21, 1995, 74th Leg., patients as part of the care they provide. See statutes requiring R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1870, 1871. The health care providers to keep patient's records confidential court determined that “injury” in the statute meant “personal cited supra Part A. We therefore conclude that a violation of a injury.” Thomas, 923 S.W.2d at 647–48. patient's confidentiality is actionable as a health care liability claim regardless of whether it occurred while the patient was 1 The current version of the statute appears in the in the treatment room or after she had left the facility. transportation code. See Tex. Transp. Code Ann. § 550.021 (Vernon Supp.2010). [9] Coffman also argues that it is “inconceivable” that the The statute in Thomas is unanalogous to the TMLA for many legislature intended to include breaches of confidentiality reasons. First, the section of the code in Thomas was entitled under the TMLA when one considers the purpose of the “Accidents involving death or personal injuries.” Id. at 647. statute. We agree with Coffman that the purpose of original Second, the section was replete with other references to statute was to address medical malpractice claims. See “personal injury,” and it assumed that a person was physically Marks, 319 S.W.3d at 663 (noting that article 4590i, the struck by a vehicle and required the driver to render aid to predecessor to the current chapter 74 of the civil practice and the person, including taking the victim to a hospital or doctor. remedies code, was enacted to “remedy a medical malpractice Id. And third, it further required the State, in prosecuting the insurance crisis”). However, the statute has been expanded driver under the statute, to prove that the injury was to “any by the legislature since its enactment, and we must give part of the human body” and that it “necessitate[d] treatment.” effect to those amendments. See Horizon/CMS Healthcare Id. Corp. v. Auld, 34 S.W.3d 887, 892 (Tex.2000) (“This Court's ultimate goal in construing a statute is to give effect to None of the indications present in Thomas that led the court to the Legislature's intent as expressed in the language of the conclude that “injury” meant “personal injury” are present in statute.”); Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d the TMLA. The statute in Thomas required an underlying tort. 578, 580 (Tex.2000) (noting that courts must “give effect Id. The TMLA allows for recovery regardless of “whether to all the words of a statute”). The legislature added and the claimant's claim or cause of action sounds in tort or in defined the phrase “professional or administrative services,” contract.” Tex. Civ. Prac. & Rem.Code Ann. § 74.001(a) and we will not now read it out of the statute. There can be no (13). The statute in Thomas made repeated references to “administrative service” more directly related to the rendition “personal injury.” 923 S.W.2d at 647. The only reference to of health care than the memorialization of that care. And the physical injury to which Coffman points is in the definition duty to maintain the confidentiality of those records cannot be of claimant, where it states, “All persons claiming to have separated from the duty to maintain them. We therefore hold sustained damages as the result of the bodily injury or death that the wrongful release of medical information is a departure of a single person are considered a single claimant.” Tex. from accepted standards of professional or administrative Civ. Prac. & Rem.Code Ann. § 74.001(a)(2). However, the services directly related to health care under the TMLA. sentence does not function to limit claimants to patients, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011) 267 Ed. Law Rep. 913 see, e.g., Fudge, 308 S.W.3d at 464 (holding that father's are not health care liability claims. Id. at 767 (Gray, C.J., and grandmother's claims for libel were health care liability concurring and dissenting) (“There must be a standard claims); Groomes v. USH of Timberlawn, Inc., 170 S.W.3d in the medical industry for the extent and nature of what 802, 804 (Tex.App.-Dallas 2005, no pet.) (holding that gets entered by the physician or health care provider in the medical records of a patient.”). Further, we are patient's mother's claims for her own emotional distress were concerned that Benson runs afoul of the supreme court's health care liability claims), much less to limit claimants holding in Yamada v. Friend, 335 S.W.3d 192, 197–98 to patients with physical injuries. We therefore do not find (Tex.2010) (holding that claims based on the same facts Thomas instructive on the present issue. as health care liability claims cannot be split because “then the TMLA and its procedures and limitations In Pallares, the Corpus Christi Court of Appeals held that a will effectively be negated”). We therefore do not find health care insurance provider was not a claimant under the Benson persuasive on this issue. TMLA because “it did not undergo treatment by Pallares.” There have been many instances in which nonphysical 267 S.W.3d at 73. The court went on to state, without support, injuries have resulted in health care liability claims. See, “Moreover, [the insurance provider] does not fit within the e.g., Murphy v. Russell, 167 S.W.3d 835, 837 (Tex.2005) definition of a claimant as provided in the [TMLA] because (sedation contrary to instructions); Walden v. Jeffery, 907 the record does not demonstrate that any person directly S.W.2d 446, 448 (Tex.1995) (ill-fitting dentures); Armstrong sustained bodily injury or death proximately caused by the v. Robinsons, No. 14–08–01077–CV, 2010 WL 4817100, at health care treatment provided by Pallares.” Id. The court *2 (Tex.App.-Houston [14th Dist.] Nov. 23, 2010, no pet.) then returned to its analysis regarding the insurance provider's (mem.op.) (ill-fitting dentures); Fudge, 308 S.W.3d at 460 status as a non-patient. The court mentions “bodily injury” (libel); Sloan v. Farmer, 217 S.W.3d 763, 768 (Tex.App.- in response to the statute's language regarding, as stated Dallas 2007, pet. denied) (employment termination); Imad, above, a non-patient's ability to seek redress when its injuries 2006 WL 334013, at *2 (mental anguish); MacPete v. result from someone else's “bodily injury or death.” See Tex. Bolomey, 185 S.W.3d 580, 582, (Tex.App.-Dallas 2006, Civ. Prac. & Rem.Code Ann. § 74.001(a)(2). That is, the no pet.) (CPS investigations, criminal proceedings, and court was addressing the insurance provider's standing absent a child custody case); Groomes, 170 S.W.3d 802, 804 any subrogation rights. See Pallares, 267 S.W.3d at 73 n. (false imprisonment); Smalling v. Gardner, 203 S.W.3d 5 (commenting, in reference to the above-quoted sentence, 354, 365 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) on the *111 lack of evidence in the record regarding the (kidnapping, false imprisonment, child abduction, fraud, insurance provider's subrogation rights with respect to the breach of contract, deceptive trade practices, and conspiracy). patient). Further, the court did not distinguish its facts from We are not persuaded that all of these cases were incorrectly the case the insurance provider relied upon on the basis that decided. We therefore refuse to add the word “physical” to the other case involved nonphysical injuries. Id. at 73–74 the injury requirement of the TMLA. (distinguishing Inst. for Women's Health, P.L.L.C. v. Imad, No. 04–05–00555–CV, 2006 WL 334013, at *2 (Tex.App.- San Antonio Feb. 15, 2006, no pet.) (mem.op.) (noting that C. Rendering an Opinion the claimants sought damages for mental anguish, loss of [11] Lastly, Coffman argues that an expert report here would companionship and society, and medical bills)). 2 require the expert to render a legal opinion and, because the statute requires a physician to render the expert opinion, it 2 Coffman also points to Benson v. Vernon, 303 S.W.3d cannot be created. See Tex. Civ. Prac. & Rem.Code Ann. §§ 755, 759 (Tex.App.-Waco 2009, no pet.), to support 74.402, 74.403(a). her suggested interpretation of Pallares. In Benson, the Waco Court of Appeals held that the plaintiff's allegation [12] The TMLA requires a claimant, within 120 days of “alteration and fabrication of medical records” was of filing her petition, to serve an expert report on each “not a health care liability claim required to be addressed party. Id. § 74.351(a). The expert report must provide the in an expert report.” Id. The court offered no analysis expert's opinion regarding “applicable standards of care, the to support its distinction of that claim from the other manner in which the care rendered by the physician or health allegations made regarding the health care that the care provider failed to meet the standards, and the causal plaintiff received. Chief Justice Gray, in his concurrence relationship between the failure and the injury, harm, or and dissent, specifically disagreed with the majority's holding that alteration and fabrication of medical records © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011) 267 Ed. Law Rep. 913 damages claimed.” Id. § 74.351(r)(6). An expert may only in the final analysis, expert testimony provide an opinion on the standard of care if he may not be necessary to support a verdict does not mean the claim is not (1) is practicing health care in a field of practice that a health care liability claim. involves the same type *112 of care or treatment as that delivered by the defendant health care provider, if the Murphy, 167 S.W.3d at 838 (commenting on former revised defendant health care provider is an individual, at the time civil statutes article 4590i, the predecessor to chapter 74). the testimony is given or was practicing that type of health Coffman's claims are based on a violation of a standard of care care at the time the claim arose; applicable to health care providers. These claims necessitate a threshold examination by an expert on that standard of care (2) has knowledge of accepted standards of care for health and a determination by that expert that Presbyterian fell below care providers for the diagnosis, care, or treatment of the that standard and proximately caused Coffman's injuries. The illness, injury, or condition involved in the claim; and expert report required at the commencement of the litigation provides the validation necessary to justify proceeding with (3) is qualified on the basis of training or experience to the lawsuit. offer an expert opinion regarding those accepted standards of health care. [14] As to the issue of causation, Coffman points out that the Id. § 74.402(b). The first requirement of subsection 74.402(b) facts of this case would require a physician to opine on what notably applies only “if the defendant health care provider civil damages Coffman suffered because of the disclosure is an individual.” Id. Coffman did not sue any individual of her health care information. See Tex. Occ.Code Ann. § providers, but only the hospital. Therefore, a qualified expert 159.009(b) (Vernon 2004) (“The aggrieved person may prove in this case would be an individual who has knowledge of a cause of action for civil damages.”). Because it seems the accepted standards of care for providers regarding the absurd to require a physician to testify as to civil damages, confidentiality of medical records and the necessary training Coffman argues that her claim cannot therefore be a health or experience to offer an expert opinion. Id. § 74.402(b)(2)- care liability claim. (3). 3 [15] The legislature has prescribed that it is necessary for a physician to opine as to causation of damages. Tex. Civ. 3 Section 74.351(r)(5)(C) requires a physician to testify Prac. & Rem.Code Ann. § 74.351(r)(5)(C). For this court as to causation. See Tex. Civ. Prac. & Rem.Code to agree with Coffman's argument, made without citation Ann. § 74.351(r)(5)(C). However, the statute allows for to authority, that the requirement is “absurd,” and therefore a plaintiff to meet the statute's requirements through should transform a clear health care liability claim into serving separate reports by different experts on liability and causation. See id. § 74.351(i) (“Nothing in this another category *113 that does not require an expert report, section shall be construed to mean that a single expert would violate legislative intent. See Marks, 319 S.W.3d must address ... both liability and causation issues for a at 673 (Johnson, J., concurring) (“If policy considerations physician or health care provider.”). support limiting or excluding subcategories of claims when the unambiguous statutory language includes the overall [13] We first note that the expert report requirement of the category ..., then incorporating those exclusions into the TMLA is a procedural requirement that all claimants must statute is a Legislative prerogative, not a judicial one.”). The complete in order to continue with their claims. The supreme inclusion of “professional or administrative services” to the court has said that the expert report definition of a health care liability claim may have created does not establish a requirement some arguably odd procedural demands for some claims. for recovery. It may be that once Nevertheless, this requirement does not make those claims discovery is complete and the case something other than health care liability claims. In Marks, is tried, there is no need for for instance, the plaintiff's expert physician opined on the expert testimony.... But the Legislature proper maintenance and construction of a hospital bed. Id. at envisioned that discovery ... should not 671 (Johnson, J., concurring). It is unusual for a physician go forward unless at least one expert to render such an opinion, but in that case, it was required. has examined the case.... The fact that See id. at 664 (holding that plaintiff's claim was a health care liability claim and required an expert report). As we noted © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011) 267 Ed. Law Rep. 913 above, recasting a claim as something other than a health care as well as the applicable federal and state laws.”); liability claim does not excuse the plaintiff from meeting the see also AMA CEJA, Access to Medical Records requirements of the TMLA. See Diversicare, 185 S.W.3d at by Non–Treating Medical Staff 1–2 (1999), available 854; Garland Cmty. Hosp., 156 S.W.3d at 543. An expert at http://www.ama-assn.org/ama1/pub/upload/mm/369/ ceja_6a 99.pdf (noting that the American Hospital report on causation written by a physician is one of those Association guidelines state that “all individuals who requirements, and Coffman failed to meet it. use or receive information from the medical record are responsible, in part, for ensuring the confidentiality of [16] Coffman further argues that an expert rendering an that information”). opinion on the standard of care could only know “under what circumstances confidential patient information can be disclosed” by reading and interpreting the statute and Conclusion legal commentary, which would amount to a legal opinion. Coffman fails to recognize in her argument that the duty of Having sustained Presbyterian's sole issue, we reverse the confidentiality is a requirement of a health care provider's trial court's order and render judgment dismissing Coffman's license and accreditation and therefore all providers are claims against Presbyterian. The case is remanded to the trial expected to know the rules and regulations regarding court for further proceedings consistent with this opinion as to Presbyterian's claim for attorney's fees and costs. dissemination of protected patient information. 4 See statutes conditioning licenses, accreditation, or participation in state or federal health care programs on the continued practice of keeping medical information confidential cited supra Part A. MEIER, J., filed a dissenting opinion. This court has noted before that “ ‘there are certain standards of medical care that apply to ... any medical doctor.’ If BILL MEIER, Justice, dissenting. the subject matter is common and equally recognized and I dissent because I disagree with the majority's conclusion that developed in all fields of practice, any physician familiar with Coffman's claim is a health care liability claim. The gravamen the subject may testify as to the standard of care.” Menefee of the claim and the injury- or damage-causing event is v. Ohman, 323 S.W.3d 509, 514 (Tex.App.-Fort Worth 2010, the release by Presbyterian of the confidential results of no pet.) (citing Blan v. Ali, 7 S.W.3d 741, 746 (Tex.App.- Coffman's urine test to the University of North Texas Police Houston [14th Dist.] 1999, no pet.)). The required expert Department, ultimately resulting in her dismissal from the opinion in this case would be on a standard of care that is university. I do not believe that the unauthorized release of the specialized and applicable to health care providers. When and confidential information meets the requirement articulated by to whom to release medical information necessarily involves Justice Medina in Marks v. St. Luke's Episcopal Hospital, professional judgment. Thus, we do not agree with Coffman stating that to require an expert opinion on a standard of care imposed on all health care providers would be a “tortured and absurd Whether the underlying claim involves construction” of *114 the TMLA. Because the standard of a health care provider's negligent act or care regarding confidentiality is a standard that applies to omission, or the patient's exposure to all health care providers and because health care providers some other safety risk, the relationship are expected to know the laws applicable to their profession, between the injury causing event and any otherwise qualified expert could offer testimony on the the patient's care or treatment must be standard of care owed to Coffman. Because the report is substantial and direct for the cause of possible and necessary, we sustain Presbyterian's sole issue. action to be a health care liability claim under the MLIIA. 4 Professional medical associations like the American Medical Association require their members to uphold 319 S.W.3d 658, 664 (Tex.2010). Because the majority ethical codes, which include the pledge to keep concludes otherwise, I respectfully dissent. medical records confidential. See AMA Council of Ethical & Judicial Affairs, Formal Op. 7.025 (1999) (“Physicians have a responsibility to be aware of the appropriate guidelines in their health care institution, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 TTHR, L.P. v. Coffman, 338 S.W.3d 103 (2011) 267 Ed. Law Rep. 913 All Citations 338 S.W.3d 103, 267 Ed. Law Rep. 913 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. 10 § 74.402. Qualifications of Expert Witness in Suit Against..., TX CIV PRAC & REM... Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annos) Title 4. Liability in Tort Chapter 74. Medical Liability (Refs & Annos) Subchapter I. Expert Witnesses (Refs & Annos) V.T.C.A., Civil Practice & Remedies Code § 74.402 § 74.402. Qualifications of Expert Witness in Suit Against Health Care Provider Effective: September 1, 2003 Currentness (a) For purposes of this section, “practicing health care” includes: (1) training health care providers in the same field as the defendant health care provider at an accredited educational institution; or (2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider. (b) In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person: (1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose; (2) 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; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care. (c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness: (1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and (2) is actively practicing health care in rendering health care services relevant to the claim. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 74.402. Qualifications of Expert Witness in Suit Against..., TX CIV PRAC & REM... (d) The court shall apply the criteria specified in Subsections (a), (b), and (c) in determining whether an expert is qualified to offer expert testimony on the issue of whether the defendant health care provider departed from accepted standards of health care but may depart from those criteria if, under the circumstances, the court determines that there is good reason to admit the expert's testimony. The court shall state on the record the reason for admitting the testimony if the court departs from the criteria. (e) This section does not prevent a health care provider who is a defendant, or an employee of the defendant health care provider, from qualifying as an expert. (f) A pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the date of the witness's deposition. If circumstances arise after the date on which the objection must be made that could not have been reasonably anticipated by a party before that date and that the party believes in good faith provide a basis for an objection to a witness's qualifications, and if an objection was not made previously, this subsection does not prevent the party from making an objection as soon as practicable under the circumstances. The court shall conduct a hearing to determine whether the witness is qualified as soon as practicable after the filing of an objection and, if possible, before trial. If the objecting party is unable to object in time for the hearing to be conducted before the trial, the hearing shall be conducted outside the presence of the jury. This subsection does not prevent a party from examining or cross-examining a witness at trial about the witness's qualifications. Credits Added by Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003. Notes of Decisions (82) V. T. C. A., Civil Practice & Remedies Code § 74.402, TX CIV PRAC & REM § 74.402 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature 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. 2