Baptist Hospitals of Southeast Texas D/B/A Memorial Hermann Baptist Beaumont Hospital v. Paul Sebile, Sr., Individually and as Heir and Representative of the Estate of Laura Sebile, Paul Sebile, Jr., Lawrence C. Sebile, Eric Sebile, Don C. Sebile, Clara J. Semien, Frankie L. Cobb and Sharon K. Dean

• Court: Court of Appeals of Texas
• Decided: January 28, 2010
• Docket: 09-09-00333-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-09-00333-CV

BAPTIST HOSPITALS OF SOUTHEAST TEXAS d/b/a

MEMORIAL HERMANN BAPTIST BEAUMONT HOSPITAL, Appellant

V.

PAUL SEBILE, SR., INDIVIDUALLY AND AS HEIR AND REPRESENTATIVE

OF THE ESTATE OF LAURA SEBILE, PAUL SEBILE, JR.,

LAWRENCE C. SEBILE, ERIC SEBILE, DON C. SEBILE, CLARA J. SEMIEN,

FRANKIE L. COBB AND SHARON K. DEAN, Appellees

On Appeal from the 60th District Court

Jefferson County, Texas

Trial Cause No. B-182,575

MEMORANDUM OPINION

We grant the motion for rehearing filed by appellant Baptist Hospitals of Southeast Texas d/b/a Memorial Hermann Baptist Beaumont Hospital. Accordingly, we withdraw our previous opinion of December 10, 2009, and substitute the following in its place.

Appellees Paul Sebile, Sr., individually and as heir and representative of the estate of Laura Sebile, deceased; Paul Sebile, Jr., Lawrence C. Sebile, Eric Sebile, Don C. Sebile, Clara J. Semien, Frankie L. Cobb and Sharon K. Dean, as children of the deceased, brought a healthcare liability claim against appellant Baptist Hospitals of Southeast Texas d/b/a Memorial Hermann Baptist Beaumont Hospital ("Baptist") and other defendants. Baptist appeals the denial of its motion challenging the expert reports. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) (Vernon Supp. 2009). We reverse and remand.

Background

In their petition, appellees alleged that after Laura Sebile went to Baptist on October 22, 2006, complaining of shortness of breath and pain, chest x-rays suggested congestive heart failure. Sebile was referred to a surgeon, Dr. Gordon, and booked for a thoracoscopy to biopsy her lymph nodes. Appellees contended that the physicians failed to eliminate congestive heart failure as the cause of Sebile's symptoms and, despite the fact that Sebile had previously had open heart surgery, did not call for a cardiology consult to clear Sebile for surgery. According to appellees, Gordon placed Sebile under general anesthesia "without a single medical consultation[,]" and the anesthesiologist, Dr. Gonzalez, "failed to read the history and physical which revealed [Sebile] as not fit for surgery." Appellees contended that during the procedure, Gordon punctured Sebile's heart with an instrument, which resulted in massive bleeding, and Sebile developed multiorgan failure and died thirteen days later. Appellees' petition alleged numerous ways in which Baptist's nursing staff failed to provide Sebile with proper treatment. Appellees' petition complained only of Baptist's nurses.

Appellees attached to their petition the expert report of Dr. Shabir Bhimji, a board-certified cardiothoracic and vascular surgeon. In his initial report, Bhimji did not discuss any alleged acts of medical negligence by Baptist or its nurses or how Baptist's alleged actions or failures to act contributed to Sebile's death. Appellees subsequently filed additional reports by an anesthesiologist, Dr. Hector Herrera, and a nurse, Elizabeth Cooper. Herrera's report discussed Gonzalez's alleged deviations from the standards of care and the causal relationship between those alleged deviations and Sebile's death. Cooper's report discussed the alleged deviations from the standards of care by Baptist's nurses and opined that the nurses' alleged deviations from the standards of care contributed to Sebile's death.

Baptist filed a motion to dismiss, in which it contended that the expert reports were insufficient. The trial court granted appellees an extension of time to file a sufficient expert report. Appellees filed two additional amended reports by Bhimji. Baptist again moved to dismiss appellees' claims. Baptist argued that Cooper was unqualified to render an opinion as to causation concerning the alleged relationship between the nurses' alleged deviations from the standards of care and Sebile's death; that Herrera's report did not address any alleged breaches of the standards of care by Baptist's nurses; and that Bhimji's report failed to establish a causal connection between the treatment provided by Baptist's nurses and Sebile's death. After conducting a hearing, the trial court denied Baptist's motion to dismiss. Baptist then filed this accelerated interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(10) (Vernon 2008).

Baptist's Issue

In its sole appellate issue, Baptist contends that the trial court erred by refusing to dismiss appellees' claims because appellees did not provide expert reports that presented a fair summary as to how the actions or omissions of Baptist's nurses allegedly caused Sebile's death.

Standard of Review and Pertinent Law

We review a trial court's decision regarding the adequacy of an expert report under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). "A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles." 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 apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

A plaintiff who asserts a healthcare liability claim must provide each defendant physician and healthcare provider with an expert report no later than the 120th day after filing suit. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2009). The statute defines "expert report" as

a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Id. § 74.351(r)(6). If a plaintiff furnishes the required report within the time permitted, the defendant may file a motion challenging the report. Id. § 74.351(l).

The statute provides that the trial court "shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Id. When determining whether the report represents a good-faith effort, the trial court's inquiry is limited to the four corners of the report. Wright, 79 S.W.3d at 53; Palacios, 46 S.W.3d at 878; Eichelberger v. Mulvehill, 198 S.W.3d 487, 490-91 (Tex. App.--Dallas 2006, pet. denied). To constitute a good-faith effort, the report "must discuss the standard of care, breach, and causation with sufficient specificity to inform the 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." Palacios, 46 S.W.3d at 875. The expert report must set forth the applicable standard of care and explain the causal relationship between the defendant's acts and the injury. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r)(6) (A claimant must provide each defendant with an expert report that sets forth the manner in which the care rendered failed to meet the standards of care and the causal relationship between that failure and the injuries claimed.); Doades v. Syed, 94 S.W.3d 664, 671-72 (Tex. App.--San Antonio 2002, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 722-23 (Tex. App.--Houston [14th Dist.] 2001, no pet.). Although an expert report need not marshal and present all of the plaintiff's proof, a report that omits any of the elements required by the statute does not constitute a good-faith effort. Palacios, 46 S.W.3d at 878-79.

Application of the Law to the Facts

Under the Medical Liability Act ("the Act"), a health care institution is included within the definition of "health care provider." Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(12) (vii) (Vernon 2005). Section 74.403(a) of the Act, which sets forth the qualifications of expert witnesses on causation in health care liability claims, provides as follows, in pertinent part:

(a) . . . a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.

Id. § 74.403(a) (Vernon 2005) (emphasis added). Because Cooper is undisputedly a nurse rather than a physician, she is unqualified under the Act to offer an opinion as to causation. See id. In addition, as discussed above, Herrera's report discussed only Gonzalez's alleged negligence. Therefore, the only remaining question before us is whether Bhimji's amended report adequately addresses the causal relationship between the nurses' alleged negligence and Sebile's injuries and death.

On page one of his report, Bhimji states, "[i]n brief, the cause of death of Laura Sebile was due to the direct actions of the surgeon, Dr[.] Fallon, gross negligence of the anesthesiologist, Dr[.] Gonzalez[,] and the numerous medical mistakes made by the nurses." Bhimji's report does not mention the nurses again until page thirteen, where he includes the following brief discussion in a section entitled "Medical errors by nurses": "The post operative care of Laura Sebile was compounded with a few medical errors. Some of the drug errors played a role in causing her death." The last mention of the nurses occurs on the final page of the report (page seventeen), where Bhimji states as follows: "Why did the nurses in the Operating room not identify the abnormal INR on the check list is beyond comprehension? [sic] . . . The death of Mrs. Laura Sebile in my opinion is directly attributable to the medical negligence by the staff, esp. the [sic] Dr[.] Fallon Gordon (surgeon) and Dr[.] Gonzalez, and nurses at Memorial Hermann Baptist [H]ospital."

Bhimji's statements as to the nurses are conclusory, since they are not linked to any facts, and they do not explain precisely what the nurses' alleged departure from the applicable standards of care were, or how the nurses' alleged negligence caused or contributed to Sebile's death. See Wright, 79 S.W.3d at 52; Nelson v. Ryburn, 223 S.W.3d 453, 456 (Tex. App.--Amarillo 2006, no pet.). Bhimji's report fails to discuss causation with sufficient specificity to inform Baptist of the conduct of its nurses that appellees have called into question and to provide a basis for the trial court to conclude that appellees' claims have merit. See Palacios, 46 S.W.3d at 875. We sustain Baptist's issue. Accordingly, we reverse the trial court's order denying Baptist's motion to dismiss and remand the case to the trial court for entry of a judgment dismissing appellees' claims against Baptist with prejudice and to award Baptist reasonable attorney's fees and court costs. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon Supp. 2009).

REVERSED AND REMANDED.

STEVE McKEITHEN

Chief Justice

Submitted on October 22, 2009

Opinion Delivered January 28, 2010

Before McKeithen, C.J., Gaultney and Kreger, JJ.