Baptist St. Anthony's Hospital and Rhodesia Castillo, M.D. v. Daniel Walker and Kristen Walker, Individually and as Next Friend of H. W.

• Court: Court of Appeals of Texas
• Decided: November 29, 2022
• Docket: 07-22-00032-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00032-CV

BAPTIST ST. ANTHONY'S HOSPITAL AND RHODESIA CASTILLO, M.D., APPELLANTS

V.

DANIEL WALKER AND KRISTEN WALKER, INDIVIDUALLY AND AS NEXT FRIEND OF H.W., APPELLEES

On Appeal from the 181st District Court Potter County, Texas Trial Court No. 110,097-B-CV, Honorable Douglas R. Woodburn, Presiding

November 29, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Baptist St. Anthony’s Hospital (BSA) and Rhodesia Castillo, M.D. appeal the trial

court’s denial of their challenge to expert reports and effort to dismiss the suit of Daniel

and Kristen Walker, individually and on behalf of their child H, (the Walkers). The three

sued BSA and Castillo for alleged negligence occurring shortly before and during the birth

of H. The arguments posed are many. They encompass the qualifications of the experts and whether their reports satisfy the applicable statute. The trial court said they did. We

conclude otherwise and reverse.

Background

According to the Walkers, the hospital and doctor breached standards of care

relating to the delivery of H and the care of Kristen during labor. The purported negligence

encompassed the manner in which BSA, through its nurses, and Castillo monitored the

pair and reacted to signs that the health and wellbeing of both patients were jeopardized.

The actions and inactions allegedly resulted in H suffering brain trauma due to an

asphyxia event, according to the Walkers. They averred in their original petition that if

the BSA nurses and Castillo complied with the relevant standards of care and caused

Kristen to undergo a cesarean 60 to 90 minutes earlier, then the infant would have

suffered no or less injury.

Three reports allegedly supporting their contentions were filed by the Walkers. The

documents were written by Drs. Tappan and Null and Nurse Beach. BSA and Castillo

moved to dismiss the suit, deeming the reports insufficient. In response, the Walkers filed

substitute reports by the same individuals. That led to other motions to dismiss, allegedly

because the reports remained deficient. The trial court denied the motions, and this

appeal ensued.

Law and Application

Per the Texas Civil Practice and Remedies Code, one pursuing a health care

liability claim must serve upon those being sued “one or more expert reports, with a

curriculum vitae of each expert listed in the report . . . .” TEX. CIV. PRAC. & REM. CODE

ANN. § 74.351(a). Service must occur generally within 120 days of the date on which

2 each defendant’s original answer is filed. Id. Should that not occur, then the physician

or health care provider sued is entitled to the dismissal of the suit with prejudice, attorney’s

fees, and court costs. Id. at § 74.351(b). Furthermore, a challenge to such a report may

be granted “only if it appears . . . that the report does not represent an objective good faith

effort to comply with the definition of an expert report . . . .” Id. at § 74.351(l). The

legislature defined “expert report” as “a written report by an expert that provides a fair

summary of the expert’s opinions . . . 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. at § 74.351(r)(6). The report illustrates the requisite “good faith

effort” when it “‘(1) inform[s] the defendant of the specific conduct called into question and

(2) provid[es] a basis for the trial court to conclude the claims have merit.’” E.D. v. Tex.

Health Care, P.L.L.C., 644 S.W.3d 660, 664 (Tex. 2022) (quoting Baty v. Futrell, 543

S.W.3d 689 (Tex. 2018)).

We caution that section 74.351(r)(6) of the Texas Civil Practice and Remedies

Code imposes a “lenient standard” assuring the claimant a fair opportunity to show his

claim is not frivolous. Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). In

assessing the report’s adequacy, we read them as a whole or in their entirety, as opposed

to focusing simply on specific portions or sections of it. Baty, 543 S.W.3d at 694; accord,

E.D., 644 S.W.3d at 667 (noting the obligation to read the report in its entirety). That

enables us to parse through the document and reorder its content to understand what the

expert says. See Baty, 543 S.W.3d at 694 (wherein the Supreme Court viewed “three

statements in different sections of the report” in rejecting a challenge to the report). And,

3 that it may lack buzzwords or magic verbiage matters not; such are unnecessary if the

information provided satisfies the aforementioned standard. Baty, 543 S.W.3d at 693-94.

Yet, it may not be conclusory; rather, the expert must “explain” the how and why of his

opinions by tying conclusions to specific facts. Abshire v. Christus Health, 563 S.W.3d

219, 224 (Tex. 2018). In other words, the expert must “explain, to a reasonable degree,

how and why the breach caused the injury based on the facts presented.” Jelinek v.

Casas, 328 S.W.3d 526, 539-40 (Tex. 2010). That said, we turn to the reports at hand.

Many justifiably complain of legalese and the resulting inability of layman to

understand terms commonly utilized by the legal community. Lawyers have nothing on

doctors. The latter tend to forget they write their health care liability reports for those

untrained in the medical field. And, lawyers do little to rectify that.

With the help of dictionaries, we interpret the reports at bar as describing a situation

where an expectant mother, while in labor, arrived at BSA. The time was about 5:30 a.m.

About three hours later, Castillo prescribed to her Pitocin, a drug used to enhance

contractions. Measures to monitor the fetal heart rate had also begun by then. Such

monitoring did not include a fetal scalp electrode. Intermittent decelerations in the fetal

heart rate were being observed during this period and apparently in conjunction with the

contractions. The administration of Pitocin continued; mother’s urge to push did not.

Castillo knew of the decelerations and at about 12:08, directed the attending nurse

to assist mother in pushing. About 40 minutes later, Castillo decided to leave the hospital,

and the nurse did not inform or seek guidance from her superiors about this. Late and

variable decelerations of the fetal heart rates persisted, and Castillo was notified of them

around 1:52 p.m. The doctor returned to the hospital and mother’s bedside by 2 p.m.

4 Monitoring of the fetal heart rate at 3:15 p.m. again revealed variable decelerations

and apparently deficient accelerations as the periodic administration of Pitocin continued.

By 3:50 p.m., those in attendance noticed swelling of the child’s scalp due to “prolonged

engagement” in the birth canal. That resulted in Castillo opting to remove the child

through cesarean section.

Around 4:33 p.m., mother went to the operating room. The initial incision into

mother’s abdomen occurred at 4:56 p.m., at which point Castillo discovered the child’s

head low in Kristen’s pelvis. Because she had difficulty in reaching it, the doctor instructed

the nurse to “push the head up from below.” Delivery ensued. Yet, the child needed to

be resuscitated. Ultimately, testing indicated the infant suffered from a “subacute

infarction” or stroke “involving the majority of his left cerebral hemisphere.” He would be

“at potential risk for focal onset seizures and epilepsy,” as reported by Tappan.

The Walkers’ experts assigned a myriad of defaults to both attending nurses and

Castillo. They consisted of 1) both nurses and Castillo failing to apply a scalp monitor to

the child’s head the morning of mother’s arrival; 2) Castillo leaving the hospital and not

being “readily available”; 3) an attending nurse failing to contact others higher in “the chain

of command” when Castillo left the hospital; 4) Castillo ordering more Pitocin while the

child exhibited “non-reassuring fetal heart rate patterns”; 5) the cesarean section not

commencing immediately after Castillo decided to perform it; 6) Castillo removing the

child from mother’s body by having the nurse push on its head as opposed to her pulling

its feet; 7) nurses failing to “discontinue the Pitocin and notify the physician” upon seeing

certain fetal heart patterns at 9:21 a.m.; and 8) nurses failing to administer terbutaline at

3:52 p.m. when a fetal heart pattern did not respond to a “decrease or discontinuation of

5 the Pitocin.” As for attempting to explain how these actions or inactions caused harm,

Drs. Tappan and Null addressed that. 1

Null focused on the delay in ultimately conducting the cesarean section. He opined

that H’s circumstances were “consistent with an asphyxia event that occurred late in the

course of labor” and “[m]ore likely than not had [H] been delivered one to one and a half

hours sooner he would not have suffered the degree of brain injury that he has.”2

Tappan’s discussion of causation was a bit longer. First, he said that “[b]ut for . . .

Castillo’s failure to deliver by reverse breech extraction, [H] would not likely have suffered

these complications and injuries,” and it “was foreseeable to an ordinarily prudent

obstetrician that failure to deliver by reverse breech extraction might reasonably result in

traumatic extraction, physical craniocerebral deformation, and trauma, including the

increased risk of arterial ischemic stroke with injury to the fetal brain.” Another of his

references encompassed the other purported acts of misfeasance. There, he said that

the “failure to meet the standards of care referred to above was a substantial factor in

causing the injuries suffered by baby [H].” He coupled that with a statement about an

“MRI” and “MRA” “suggest[ing] the possibility that [H] sustained a perinatal arterial

ischemic stroke likely due to intrapartum factors including prolonged second-stage labor,

1 Nurse Beach rendered no opinion on causation for she, as a nurse, was not qualified to do so.

See Shaw v. West, No. 07-14-00181-CV, 2014 Tex. App. LEXIS 10715, at *7 (Tex. App.—Amarillo Sept. 24, 2014, no pet.) (mem. op.) (holding a nurse unqualified to opine on causation since she was not a doctor). 2 Null actually opined that the infant’s fetal heart tracing followed by the need for resuscitation, need for assisted ventilation, need to be cooled, his coagulopathy, his seizures, his severe acidosis, and the absence of evidence of infection “are all consistent with an asphyxia event that occurred late in the course of labor.” (Emphasis added). To the extent that BSA and Castillo suggest that the phrase “consistent with” is too indefinite to establish causation, Supreme Court authority suggests otherwise. In Miller v. JSC Lake Highlands Operations, 536 S.W.3d 510, 515 (Tex. 2017), the Court found the report sufficiently revealed causation despite the expert saying his interpretation of the x-rays was “‘consistent with the conditions stated in the death certificate as the cause of Hathcock’s death.’” (Emphasis added).

6 fetal heart rate abnormalities, and trauma at the time of delivery, including the forceful

external manipulation of the fetal head incident to its impaction in the maternal pelvis.”

According to Tappan, the child “sustained an in-utero asphyxial injury during the final one

to one and a half hours of labor” and had “Castillo decided for cesarean delivery at or

about 15:15 and had she “atraumatically” delivered Baby [H] by 15:45 on 05/22/15, [he]

would have been born without neurologic injury.” He then concluded by stating that “[a]ll

the above opinions [were] stated to a reasonable degree of medical certainty on a more

probable than not basis.”

In short, Drs. Null and Tappan informed the trial court of an impending birth,

defaults in monitoring the child, purported misapplication of medications influencing

(directly or indirectly) the fetal heart rate, a medical practitioner leaving the hospital for a

short period of time, little progress in a birth unassisted by surgery, delay in ultimately

removing the child through surgery, purportedly questionable means by which the baby

was removed, and the child ultimately suffering brain trauma. That trauma may have

been avoided, according to the experts, if the monitoring was better, the doctor acted

sooner, and the doctor removed H by pulling on his feet. What is missing is a simple

explanation of how and why the misconduct assigned Castillo and the nurses was a

substantial factor in H suffering “a large subacute infarction involving the majority of his

left cerebral hemisphere.” See Pediatrics Cool Care v. Thompson, 649 S.W.3d 152, 158

(Tex. 2022) (involving medical malpractice and stating that a defendant’s negligence is

the cause-in-fact of a plaintiff’s injury if the act or omission was a substantial factor in

causing the injury, and without, the harm would not have occurred).

7 We assume arguendo the reports sufficiently describe the occurrence of an

asphyxia event, as we do the discovery of injury at birth. Missing though is adequate

explanation tying the purported “asphyxia event” to the “large subacute infarction

involving the majority of his left cerebral hemisphere.” Whether asphyxia, in general, or

the extent allegedly encountered by the unborn child, in particular, can lead to such brain

injury was left to inference or speculation. Yet, to be adequate, the report itself “must

include the required information within its four corners.” Bowie Mem’l Hosp. v. Wright, 79

S.W.3d 48, 53 (Tex. 2002). We cannot supply it by inference. Scoresby, 346 S.W.3d at

556.

At best, Tappan opined that that the presence of a subacute infarction “suggests

the possibility that H sustained a perinatal arterial ischemic stroke likely due to

intrapartum factors including prolonged second-stage labor, fetal heart rate abnormalities,

and trauma at the time of delivery . . . .” (Emphasis added). That too is deficient since

the mere “possibility” of a link between conduct and eventual harm fails to illustrate the

reasonably medical probability demanded by the statute. Wright, 79 S.W.3d at 53;

Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P. v. Remington, No. 04-17-00728-

CV, 2018 Tex. App. LEXIS 6387, at *9 (Tex. App.—San Antonio Aug. 15, 2018, no pet.)

(mem. op.). The expert must still explain how the conduct caused the injury. Wright, 79

S.W.23 at 53.

Nor did either physician explain how or why H’s position low in Kristen’s pelvis

caused either asphyxia or infarction. The same is true regarding the non-application of a

monitor on the unborn child’s scalp. That default occurred around 9 a.m. while the

asphyxia event and brain trauma supposedly “occurred late in the course of labor.” Again,

8 we are left to speculate about how either asphyxia or trauma would not have happened

had the monitor been affixed earlier. About same omission, we also observe that “[a]n

event that starts a chain of events can be too attenuated from an injury to cause it.” Curnel

v. Houston Methodist Hospital-Willowbrook, 562 S.W.3d 553, 565 (Tex. App.—Houston

[1st Dist.] 2018, no pet.). This means the experts would have had to also explain why an

act transpiring some six or more hours before the occurrence of harm was not too

attenuated to the eventual harm. They did not here.

No less is true of Castillo’s leaving the hospital for 75 minutes but returning over

an hour before deciding to conduct the cesarean. Her leaving may look bad and breach

some standard of care, but no one explained why it mattered or how her remaining would

have avoided trauma. Regarding the failure of attending nurses to inform their superiors

of Castillo’s departure, like omissions reappear. We again were left to speculate about

what those superiors could or would have done to prevent the subacute infarction had

they been told. The experts said nothing about that. Nor did they even address whether

those higher up the chain of command had a right to stop Castillo from leaving, persuade

her to remain, secure a substitute physician, or the like. See Columbia Valley Healthcare

Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017) (wherein the hospital was

accused of negligence because it failed to prevent a patient’s transfer and holding

causation insufficiently explained because the experts did not address how the hospital

had either the right or means to stop it). Nor did they explain what ameliorative measures

the hospital could have undertaken while Castillo was gone to preempt H’s brain trauma.

9 As for Pitocin/Oxytocin and the way it was administered, the average judge

untrained in the field of medicine may garner from the reports a relationship between the

drug and contractions. So too may it see accusation about the mis-administration of the

substance and comment about contractions influencing fetal heart rates. What it will not

see is discussion about how or why the variable heart rates experienced by H before,

during, or after the contractions could or would cause asphyxia in general or to a level

sufficient to result in an infarction.

About the delay between the time Castillo decided to utilize a cesarean and her

initial incision, there was some, no doubt. But, the experts do not provide factual

explanation of how or why H would not have suffered the eventual infarction had the

surgery commenced post-haste. They seem to conclude as much but offer no factual

reasoning to support that conclusion.

And, though it may be foreseeable that pushing on a baby’s head during extraction

may cause injury, how and why it did in this particular instance was left unaddressed.

See Thompson, 649 S.W.3d at 158 (stating that proximate cause has two components,

cause-in-fact and foreseeability). As with the other alleged acts of mis- and non-

feasance, the experts left us to speculate about the link.

So too do the reports leave one to legitimately ask how the asphyxia or infarction

was reasonably foreseeable from the alleged defaults other than pushing on H’s head.

See Zamarripa, 526 S.W.3d at 460 (stating that “the causal relationship between breach

and injury that an expert report must explain” encompasses both cause-in-fact and

foreseeability). With the advent of Columbia, the expert report must address both cause-

in-fact and foreseeability. Curnel, 562 S.W.3d at 569-70. And, as previously mentioned,

10 the only act of misfeasance in relation to which any of the experts discussed foreseeability

was the instance of pushing on the baby’s head.

No doubt, something happened leaving child and parent to suffer the

consequences. But a tragedy does not relieve anyone, including the judiciary, from

complying with section 74.351. While the experts at bar proffered a litany of allegedly

deficient conduct, they failed to explain how and why each caused, within reasonably

medical probability, H’s eventual subacute infarction before birth. This makes their

reports less than a fair summary allowing jurists to reasonably conclude that either BSA

or Castillo caused the harm suffered by H. To the extent that the trial court held otherwise,

it abused its discretion. See E.D., 644 S.W.3d at 664 (alluding to the use of an abused

discretion standard when reviewing the trial court’s decision about the sufficiency of the

reports).

We reverse the trial court’s order. In its place, we enter our own and dismiss, with

prejudice, the Walkers’ suit against Rhodesia Castillo, M.D., and Baptist St. Anthony’s

Hospital. So too do we remand the cause to the trial court with the directive to calculate

and award Castillo and the hospital reasonable attorney’s fees and court costs per section

74.351(b)(1) of the Texas Civil Practice and Remedies Code.

Brian Quinn Chief Justice