Garrison Nursing Home and Rehabilitation Center and Garrison Nursing Home, Inc. v. Legatha Demings

Opinion

ACCEPTED 12-15-00189-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 11/9/2015 2:58:15 PM Pam Estes CLERK

CAUSE No. 12-1 5-001 89-CV

FILED IN 12th COURT OF APPEALS IN TT{E COURT OF APPEALS OF TEXAS TYLER, TEXAS FOR THE TWELFTH CIRCUIT 11/9/2015 2:58:15 PM TYLER, TEXAS PAM ESTES Clerk

GARNSON NURSING HOME AND REHABILITATION CENTER AND GARNSON NURSING HOME, INC., Appellant

V

LEGATHA DEMINGS, Appellee

On Appeal From Cause No.

In the 745th Judicial District Court of Nacogdoches County, Texas

APPELLEE'S BRIEF

Law OTTIcB oF STEPHEN SHIRES, PLLC Attorney & Counselor at Law

W. Stephen Shires State Bar No. 50511894 123 San Augustine Street P.O. Box 2224 Center, Texas 75935 (936) s98-30s2 (Phone) (936) s98-303 1 (Facsimile) stephen @s hire s I aw firm. c o m ATTORNEY FOR LEGATHA DEMINGS

ORAL ARGUMENT REQUESTED IF GRANTED TO APPELLANT

IDENTITY OF PARTIES AND COUNSEL In accordance with TBx. R. App. P.38.1(a), the following is a list of the

parties to this action, their respective counsel, and the presiding judge at trial:

Appellants Garrison Nursing Home and Rehabilitation Center and Garrison Nursing Home, Inc. (ooGNHoo)

Trial and Appellate Counsel: David'W. Frost Kent, Anderson, Bush, Frost, and Metcalf, P.C. 1121 E.S.E Loop 323, Suite 200 Tyler, Texas 7570t (903) s79-7s00 (phone) (903) 58 1-3701 (facsimile) dfrost@tyler.net

Appellee Legatha Demings ("Demings")

Trial and Appellate Counsel: Stephen Shires Law Office of Stephen Shires, PLLC 123 San Augustine Street P.O. Box 2224 Center, Texas 75935 (936) s98-30s2 (phone) (936) 598-303 1 (facsimile) stephen@shireslawfirm. com

Trial Judge Honorable Campbell Cox II 145th Judicial Court, Nacogdoches, Texas

1t

TABLE OF CONTENTS IDENTITY OF PARTIES AND COTINSEL l1

TABLE OF CONTENTS 111

TABLE OF AUTHORITIES ..... iv STATEMENT REGARDING ORAL ARGUME,NT 1

STATEMENT OF ISSUES 1

STATEMENT OF'TITE CASE 1

STANDARD OF REVIEIT I

STATEMENT OF FACTS 2

a

STTMMARY OF THE ARGITME,NT J

ARGUMENT 4

A. GNH improperly seeks a technical dismissal of claims that clearly have merit.

B. Dr. Miller is qualified to address causation in this case.

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C. The reports do not simply provide conclusory statements on causation.

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D. Alternatively, this is a matter of r¿s ipsa loquilut I7 CONCLUSION AND PRAYER 18

CERTIFICATE OF SERVICE .......... I9

CERTIF'ICATE OF' COMPLIANCE t9

INDEX OF APPENDIX 20

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TABLE OF AUTHORITIES CASES Am. Transitional Care Ctrs. Of Texas, Inc. v. Palacios,46 S.V/.3d 873 (Tex. 2001) ...2,4 Bowie Mem'l Hosp. v. Wright,79 S.W.3d 48, 52 (Tex. 2002) 6

Broders v. Heise,924 S.W.2d I48 (Tex. 1996) 7

Collini v. Pustejovsky,2S0 S.W.3d 456 (Tex. App. Fort Worth 2009, no pet) 11

Daubert v. Merrill Dow Pharmaceuticals, [nc.,509 U.S. 579 (1993) ........ 10 Downer v. Aquamarine Operators, Inc.,70l S.W.2d 238 (Tex. 1985) .........2 Gammill v.Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998) ..... 10 Haddockv. Arnspiger,793 S.W.2d 948,950 (Tex. 1990) 17, 18 Hall v. Huff 957 S.W.zd90 (Tex. App. - Texarkana 1997, pet. denied) ......7 HEB Grocery Co. v. Galloway,2014 WL 2152128 (Tex. App. - Beaumont 2014, not pet) 11

Kunho Tire Co. v. Carmichael,526 U.S. 137 (1999) 10

Mack Trucks, Inc. v. Tøme2,206 S.W.3d 572 (Tex. 2006) 10

Nenno v. State,970 S.W.2d 549 (Tex. Crim. App. 1998) 10

,Ross v. St. Luke's Episcopal Hospital,462 S.W.3d 496 (Tex.2015)............. 5

Samlowski v. Wooten,332 S.W.3d 404,410 (Tex.20ll) 6

Scoresby v. Santillan,346 S.W.3d 546 (Tex. 2011) 5

Van Ness v. ETMC First Physicians,46l S.W.3d 140 (Tex. 2015)

1,4,5,6,16, 17

STATUTES AND RULES

a

Tsx. Cry. Pnacr. & Rpvr. Cooe Ann. $74.001 J

TEx. Cru. Pnacr. & Rpvt. Cons Ann. ç74.201(Jones McClure 2015) ........17 TEx. Ctv. Pnacr. & RsN4. Conp Ann. $74.351 (Jones McClure 2015)...... l, 5

TBx. Ctv. Pnacr. & RBH¿. Conr Ann. ç74.403 (Jones McClure 2015) ..........7

lv

STATEMENT REGARDING ORAL ARGUMENT GNH requested oral argument in this case. In the event that the Court grants

GNH's request, then Demings also requests oral argument in this matter.

STATEMENT OF ISSUES GNH has raised the following two issues:

1. Whether the trial court abused its discretion in overruling GNH's objections to Demings' supplemental expert report from Dr. Keith E. Miller for the failure to show he was qualified to provide opinions regarding the element of causation and denying GNH's motion to dismiss pursuant to TEx. CIv. Pnacr. & REII¿. ConBAnn. 574.351 (Jones McClure 2015).

2. Whether the trial court abused its discretion in overruling GNH's objections to Demings' supplemental expert report from Dr. Keith E,. Miller for failure to adequately address the element of causation and denying GNH's motion to dismiss pursuant to TBx. Ctv. Pnecr. & REM. Conp Ann. ç74.351 (Jones McClure 2015).

STATEMENT OF THE CASE

GNH accurately stated the Statement of the Case in this matter. Demings

would only add that the Supplemental Miller Report filed by Demings in this

matter (CR 50) was expressly incorporated by reference into the previous Kaper

Report (CR 25), and vice-versa. In other words, the two reports are to be

construed together, as if one report, along with all the information contained in

both reports.

STANDARD OF REVIEW Demings agrees that the Standard of Review in this matter is abuse of

discretion. See Van Ness v. ETMC First Physicians,46l S.W.3d 140,742 (Tex.

2015); Am. Transitional Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3d 873,877

(Tex. 2001). Demings further agrees that a trial court abuses its discretion only

when it acts in an arbitrary or unreasonable manner without regard to any guiding

rules or principals. Downer v. Aquamarine Operators, Inc.,70l S.!V.2d 238,24I-

42 (Tex. 1985).

STATEMENT OF FACTS

This case arises out of, among various breaches of duty, the complete failure

of GNH to administer the medication Xarelto to Demings despite a prescription

from her treating physician for that medication. (CR 25, 50). Demings had been

diagnosed with atrial fibrillation and previously suffered a mild ischemic cardiovascular accident. (CR 55). As a result, her physician, Dr. Dennis

Calhoun, had prescribed Xarelto, to be taken by Demings as a measure to prevent

her from suffering another and possibly greater and much more severe stroke. (CR

55). To be clear - the purpose for Demings taking the Xarelto in this case was

solely to prevent her from suffering another stroke resulting from her atrial

fibrillation. (CR 25, 50). GNH's own report admits that GNH failed to provide

the Xarelto to Demings due to an 'oerror in the transcription of [the] order." (CR

64). Demings then actually suffered a severe stroke, and, prior to transferring

Demings to the hospital, the charge nurse at GNH, after talking to a doctor, that the

medication had effoneously been omitted from the MAR. (CR 55, 57, 64). As a

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result, Demings has sued GNH for negligence, alleging that GNH, among other

things

o breached their duty to provide her with necessary supervision;

a breached their duty to use reasonable care in treating her with the degree of skill and learning ordinarily possessed and used by nursing home facilities East Texas;

o breached their duty to assist her in attaining and maintaining the highest practicable level of physical, mental, and psychosocial well-being;

o breached their duty to make sure that she received all of her medications timely and in the appropriate doses - namely the prescribed Xarelto;

a breached their duty to make sure that her' prescription(s) and/or orders were accurately transcribed by the nursing home staff onto her charts/records/orders and to properly send her prescription to be filled by the pharmacy - namely failing to include Xarelto as one of the medications for the pharmacy to fill; and

a breached their duty to have a system in place that insures the accuracy of the transcription of her prescription order.

SUMMARY OF THE ARGUMENT The trial court did not abuse its discretion in this case. The reports

submitted by Demings meet the requirements of TBx. Cry. Pnacr. & RsNl. CopB

Ann. $74.001 et. seq. (Jones McClure 2015) (hereinafter the "Medical Liability

Act"). The reports provide more than adequate information to: (i.) inform GNH of

the specific conduct that Demings has called into question, and (ii.) provide a basis

for the trial court to conclude that her claims have sufficient merit for the case to

proceed in the litigation. GNH seems to interpret the Medical Liability Act to

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require Demings to provide a level of proof that is more attributable to what is

expected at the final trial of this matter. Such is improper. Given the nature of this

case, Dr. Miller's credentials are more than sufficient to demonstrate that he is

qualified to render an opinion on causation in this matter. Further, the information

provided in the reports on causation makes them not merely "conclusory." The

reports provide reasoned analysis on the matter that provides a basis for causation.

Should this Court disturb the trial court's decision in this case, such would be

effoneous. See Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (Tex. 2015).

Finally, Demings argues in the alternative that the doctrine of res ipsa loquitor

excuses the requirement of demonstrating causation in this case.

ARGUMENT GNH argues that the reports proffered by Demings are deficient under the

standards set forth by the Medical Liability Act, as interpretedby Am. Transitional

Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3 d 873 (Tex. 2001). Originally,

GNH argued that there was a problem with the causation portion of the report

proffered by Pauline Kaper, R.N. ("Kaper") because she is not a physician.

Demings remedied that issue by supplementing that report with the report of Keith

Miller, M.D., who is clearly a physician. The report of Dr. Miller, which was

supplemental to the Kaper report, addresses and reinforces the standards of care,

breaches of the standard, and the causation in this case, as originally set forth in the

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Kaper report. Read together, the original report of Kaper and the supplemental

report of Miller fulfill the obligations required by the Medical Liability Act. For

this reason, this Court should affirm the order of the trial court in this matter

A. GNH imnronerlv seeks a techn I dismissal of claims that clearlv have merit.

The purpose of the Medical Liability Act's expert report requirement is not

to have claims dismissed regardless of their merits, but rather it is to identiff and

deter frivolous claims while not unduly restricting a claimant's rights. Ross v. Sr.

Luke's Episcopal Hospital, 462 S.W.3d 496, 502 (Tex. 2015); Scoresby v.

Santillan, 346 S.W.3d 546,554 (Tex. 20Il). A plaintiff asserting a health care liability claim must serve each defendant with an expert report that includes 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 damage claimed." Van Ness v. ETMC First Physicians, 467

S.V/.3d 140, 141(Tex. 2015) (quoting Tex. Cry. Pnacr. & RsN4. CooB Ann. ç74.351(r)(6) (Jones McClure 2015)). A challenge to the sufficiency of a report

will only be sustained if "the report does not represent an objective good faith effort to comply with the fstatutory requirements]." 1d The report constitutes a

good faith effort if it provides adequate information to inform the defendant of the

specific conduct the plaintiff has called into question, provide[s] a basis for the

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trial court to conclude that the claims have merit, and does not contain a material

deficiency. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002);

Samlowski v. Wooten, 332 S.W.3d 404,410 (Tex.20ll). The reports proffered by

Demings clearly meet these standards. As stated above, the purpose of the expert

report requirement is not to have claims dismissed regardless of their merit, but

rather to identifi'and deter frivolous claims. In the very least the proffered reports

demonstrate that Demings claims rise above the level of frivolous. The purpose of

the report is not to fully and finally litigate the merits of the case, but rather to

provide a mechanism to make sure the case is not being brought to harass the

defendant.

As such, GNH was attempting to abuse a process, designed to merely insure

that a claim being brought is bonafide, in order to cause a claim with clear merit to

be summarily dismissed. Such was wholly improper.

In this case, the trial court found that Demings fulfilled the requirements of

the Medical Liability Act. The trial court acted within its discretion in overruling

GNH's objections and denying its motion to dismiss the case. To upset the trial

court's decision in this matter would be improper, just as it was in Van Ness v.

ETMC First Physicíans,461 S.W.3d 140 (Tex. 2015). (Appendix C). In that case,

the Texas Supreme Court reversed this Court's decision reversing the trial court's

7

decision to deny ETMC's motion to dismiss case on virtually the same grounds

and for the same reasons proffered by GNH in this matter.

B. Dr. Miller is qualified to address causation in this case.

In order to provide testimony on causation, the expert must (i.) be a physician, and (ii) be qualified to give an opinion under the Texas Rules of

evidence. TBx. Clv. Pnacr. &, Rru. CooB Ann. ç74.403 (a)-(c) (Jones McClure

2015). The expert simply must demonstrate that he has knowledge about the

specific issue that he is testi$ring about and that he meets the requirements of

Texas Rule of Evidence 702 regarding the issue. Broders v. Heise, 924 S.W.2d

148, 152-153 (Tex. 1996). Put another way, the expert only has to demonstrate

that the subject is common to and developed in his or her field or practice. Id.;

Hall v. Huff, 957 S.W.2d 90, 100 (Tex. App. - Texarkana 1997, pet. denied). In

this case, Dr. Miller unequivocally states that he has familiarity with the standard

of care (and the related assessment of causation) for the treatment of patients with

strokes, hypertension, and related illnesses, and with conditions similar to those

experienced by Demings

At the time of the care and treatment of Ms. Legatha Demings by Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, form May 2012 through June 2012,I was familiar with the minimum medical standards of care applicable to the assessment, diagnosis and treatment of patients with strokes, hypertension, and related illnesses, as well as their complications and other medical conditions similar to those experienced by Ms. Legatha Demings and described in the referenced medical records.

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I am familiar with the medical and nursing standards of care for the above referenced conditions applicable to Garrison Nursing Home and Rehabilitation Center in Garrison, Texas. The minimum standards of care for treatment of patients with similar signs, symptoms and conditions as Ms. Legatha Demings that are the basis of this report, are national standards of care and do not differ from community to community.

From the time of the medical treatment of Ms. LegathaDemings from ll4ay 2012 through June 2012, and through the present, I have had an active clinical practice as a family practitioner in Center, Texas that includes providing care to adult patients in nursing homes and rehabilitation centers, such as Ms. Legatha Demings. During my career as a family practitioner, I have worked with and or supervised medical office stafï, hospital staff, cursing home staff, and rehabilitation center staff, inducing medical technologists and nurses, in the care of my patients. I have also participated in the development and use of protocols, policies and procedures for the care of patients with strokes, hypertension and related illnesses, as well as their causes and complications, including adults such as Ms. Legatha Demings.

In addition, based on my education, training knowledge and direct experience, I am familiar with the accepted and expected standards of cate, as listed below, for nursing home and rehabilitation center facilities who take care of patients with conditions such as strokes, hypertension, related illnesses, and their complications, and can offer opinions on the standards of care, the breaches of the standards of care and the causation of the injuries from these breaches.

In my medical practice, I routinely rely on medical records, nursing records, lab reports, diagnostic tests and images, consulting physician reports and other patient data. I consider materials of this type to be generally reliable, unless evidenced otherwise, and they are the type of materials routinely relied upon by physicians and clinical staff in providing care to patients.

,See Report of Dr. Miller, pp 5-6 (CR 50) (Appendix B). Without a doubt, the

prescription of a regime of blood thinner is clearly with the scope of Dr. Miller's

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practice as a physician that deals with patients that are stroke victims and patients

that reside in nursing homes. It is clearly within the scope of his expertise, then, to

testiSr about the effect of failing to take the prescribed regime of the blood thinner.

Moreover, Dr. Miller goes on to state additional information concerning his "case

specific expertise," that further demonstrates his expertise in treating patients in

nursing homes, expressly including patients that suffer from the "same or similar"

conditions Demings, including illnesses related to strokes, hypertension, and

related illnesses, gained through:

1) His attending, and successfully completing, medical school classes, and residency, that teach the evaluation, diagnosis, cafe and treatment of patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications.

2) Practical experience of diagnosing and treating patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

3) Discussions with colleagues atyearly conferences, seminars and meetings;

4) Study of technical works routinely published in textbooks, journals and literature conceming the evaluations, diagnosis, care and treatment of patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

5) My routine discussions and consultations with other physicians who also treat patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

6) His routine and regular contact with nursing home nurses, staff and residents who take care of patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

7) His knowledge and experience giving lectures and in-service conferences to the nurses and staff;

8) His experience service on numerous hospital and nursing home committees;

and

9) His observation ofnurses and nurse conduct, supervising residents and instructing nurses and residents in the evaluation, diagnosis ) eare and treatment of patients the same as, or similar to Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications.

Id. at pp. 6-7. Without a doubt, Dr. Miller provides sufficient information to meet

the requirements for reliability under the applicable standards for Texas Rules of

Evidence 702 and 703. See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993); Kunho Tire Co. v. Carmíchael, 526 U.S. 137 (1999); Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006); Gammill v. Jack Williams

Chevrolet, lnc.,972 S.W.2d 713 (Tex. 1998); Nenno v. State,970 S.W.2d 549

(Tex. Crim. App. 1998). As a practical matter, it would be virtually impossible to

locate and retain a practicing physician who could truthfully state that he has

specifically studied the specific effects of or had specific training concerning the

specific drug Xarelto, as GNH asserts is required in this case. That is not required

by the Medical Liability Act. Instead, Dr. Miller has provided more than sufficient

l0

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information that would qualiS him to testiff under Texas Rules of Evidence 702

and 703 on this issue, which is what is required. In this case, Dr. Miller provided

sufficient information that he has experience in treating patients in nursing homesl

and treating patients that have suffered strokes, which would necessarily include

the medications associated with the treatment of the condition. Dr. Miller's report

contains a long recitation of his experience and qualifications in dealing with stroke victims and nursing home patients. For this reason, the cases cited by GNH

on this issue are inapposite,2 and GNH's argument on this point is simply not

persuasive.

C. The reports do not simplv provide conclusory statements on causation.

Dr. Miller provides a seventeen (17) page, single spaced report. He devotes

four (4) pages of the report to addressing causation. See Dr. Miller Report pp. 11-

15 (Appendix B) (CR 50). Dr. Miller ultimately concludes that:

As a direct cause, this facility and its staff failed to comply with those standards set forth in paragraph numbers: 1 , 2, 3, 4, 5, 6, 7 , 8, 9, 10, 1 l, 12, 13, 14, 15, 16, 17, 18, 19, and 20.It is my opinion, based upon my experience, knowledge, qualifications and review of these records that these standards were not followed and the result was that Ms.

I Interestingly, GNH chooses to focus simply on its failure to provide Demings with the medication. However, it should be noted that Demings has asserted a number of breaches of duty in this matter, including the duty to provide the proper medication, that led to the demise of Ms. Demings. See Facts Section, supro, Page 3. These items are clearly addressed by the Miller and Kaper reports.

2 Colliri v. Pustejovslry,280 S.V/.3d 456 (Tex. App. Fort V/orth 2009, no pet) and HEB Grocery Co. v. Galloway,2014WL2l52I28 (Tex. App. - Beaumont 2014, not pet).

Legatha Demings was harmed and injured. The failure to comply with these standards caused, within a reasonable degree of medical and nursing, probability and certainty, Ms. Demings to suffer a stroke, extensive hospitalization, rehabilitation, and related complications, which compromised her overall health and well-being, and resulted in an overall worsening of her condition, unnecessary and preventable pain, suffering, mental anguish, and loss of dignity. These injuries and illnesses could have, within a reasonable degree of medical and nursing, probability and certainty, been prevented or detected/addressed earlier if these standards had been followed.

See id. atp. 14 (Appendix B) (CR 50). Dr. Miller did not simply state this opinion

in a conclusory matter. Instead, he devotes pages 11-L4 on providing the basis for

his opinion, which includes, but is not limited to, the following matters:

o In the hospital, Ms. Demings was diagnosed as having had a cerebrovascular accident (CVA) or stroke. Ms. Demings was discharged from the hospital on May 25,2012.In his discharge summary, Ms. Demings' physician documented that this patient's stroke was of ". ..ischemic origin, most likely caused by her atrial fibrillation.

a In order to treat Ms. Demings' condition and prevent further strokes, her physician discharged her from the hospital on a blood-thinning medication, Xarelto. This physician stated in his discharge summary that Ms. Demings would be "...started (on) Xarelto for her anticoagulation to avoid further strokes.

a On May 25,2012, Ms. Demings was discharged from the hospital and admitted to Garrison Nursing Home and Rehabilitation Center in Garrison, Texas for further recovery and rehabilitation. According to Ms. Demings' physician, this resident had begun to make some improvement as evidenced by improvement in her speech and increased movement of her left side.

o After being in the care of Garrison Nursing Home and Rehabilitation Center for less than two weeks, Ms. Demings became "confused, combative, and unable to communicate". On June 8,2012, she was taken by emergency medical services back to Nacogdoches Medical Center for emergency evaluation. There a

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computerized tomography (CT) scan of her head revealed an ischemic infarction of her brain consistent with a stroke.

a One of Ms. Demings' consulting physicians, a neurological specialist, documented in the medical record that Ms. Demings had suffered a "Cerebrovascular accident extension with newly developed global aphasia, aphasia and left-sided flaccid paralysis".

a Ms. Demings remained in the hospital for 12 days, and was discharged on June 20, 2012. At the time of her discharge from the hospital, Ms. Demings' physician noted in his discharge summary that this patient's overall medical condition had deteriorated as a result of her stroke she suffered at Garrison Nursing home and Rehabilitation Center, to the point that Ms. Demings was made a do-not-resuscitate status such that if she experienced a cardiovascular or respiratory failure, she would not be intubated or placed on a ventilator or breathing machine.

a A "Medication Error Report" made by the nursing staff of Garrison Nursing Home and Rehabilitation Center on June 8, 2012, documented that from the time Ms. Demings was first admitted to this facility on May 25,2012 until the time of her stroke and transfer on June 8,2012, Ms. Demings was not given her blood-thinning medication, Xarelto as ordered by her physician. This medication had been ordered to be given in a dose of 20 milligrams (mgs) at bedtime daily.

a This same report stated that "res. (resident) arrived after 5:00 pm on a Friday.

This medication (Xarelto) was ordered along (with) all other meds from nursing home pharmacy nurse transcribing orders had to have all meds written on -

pharmacy order sheets and faxed in to pharmacy by 6 pm so they could be delivered that night".

o The Medication Error Report went on to document that a nurse at this nursing home "failed to transcribe this med (medication) to MAR (Medication Administration Record)"... "an oversight". A question on this same form asked "Could the error have endangered the life or welfare of the patient?" The responsible nurse completing the form answered the question with "Makes her a higher risk for stroke in view of her diag (diagnosis) of atrial fibrillation."

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a On a subsequent hospitalization on August 5, 2012, in his pre-operative history and physical, one of Ms. Demings' physicians documented what had happened to her during her stay at Garrison Nursing Home and Rehabilitation Center from May 25,2012 through June 8, 2012. This physician stated that prior to her first admission to this nursing home, Ms. Demings "was found in atrial fibrillation. She was started (on) Xarelto. Apparently... did not follow-through in the nursing home, and she had.. strokes, disabling, with severe She was rendered substantially disabled."

a This physician also documented in his discharge summary of this August 5, 2012 hospital stay, the importance of a patient such as Ms. Demings who suffered with atrial fibrillation, to always remain on a blood-thinning medication such as Xarelto. He stated that "She is to continue with Xarelto. Instructions were given to the family to make sure that this medication is never stopped."

o The staff of Garrison Nursing Home and Rehabilitation Center in Garrison, Texas failed to appreciate that Ms. Legatha Demings was at the highest risk for the development of future strokes due to her past medical history which included hypertension, atrial fTbrillation, a previous TIA and aprevious stroke.

See id. at pp. tI-14 (Appendix B) (CR 50). What is more, Dr. Miller reviewed the

report of Kaper, to which his report is supplementary. In Kaper's report, there is

also a discussion concerning causation:

Causal Relationship Between the Fail ure and the Iniurvl}{arm

Xarelto is a blood thinner, the precise purpose of which is to reduce the risk of stroke in patients who suffer from atrial fibrillation. Defendant(s) failed to provide Ms. Demings, with the Xarelto for fourteen (14) days . She then had a severe stroke, which would have in all reasonable medical probability been avoided had Ms. Demings been administered the Xarelto, the purpose of which was to prevent a stroke.

Further, the Medication Error Report generated by Defendant(s) clearly recognizes the problem of not administering the Xarelto to Ms. Demings Checking rr\Esrr to the question of whether the "error"

t4

15

(failure to administer the Xarelto to Ms. Demings), "could have endangered the life or welfare of the patient," the Director of Nursing stated:

Makes her a higher risk for stroke in view of her diag. of atrial fibrillation (not taking it) Taking the medication makes res. higher risk for a bleed.

Atrial fibrillation the heart to pump irregularly, and the causes concern is that pooling blood can clot in the upper chambers of the heart. These clots may then sometimes travel through the body to the brain, with a stroke being the result. As a result, many patients diagnosed with atrial fibrillation are prescribed a blood thinner, one of which is Xarelto,

Xarelto is designed to block the enzyme called Factor Xa. Factor Xa is the activated form of the coagulation factor thrombokinase, known eponymously as Stuart-Prower factor. Factor X is an eîzymq a serine endopeptidase, which plays a key role at several stages of the coagulation system. Inhibition of Factor Xa interrupts the intrinsic and extrinsic pathway of the blood coagulation cascade, inhibiting both thrombin formation and development of thrombi, Factor Xa is inactivated by proteinZ-dependent protease inhibitor (ZPl"), a serine protease inhibitor (serpin). By inhibiting Factor Xa in this way, Xarelto is able to inhibit the dangerous blood clotting that can be a result of a patient suffering from atrial fibrillation:. Xarelto is well absorbed from the gut, and maximum inhibition of the Factor Xa occurs four hours after a dose. The intended effect lasts approximately 8-12 hours, but Factor Xa activity does not return to normal within 24 hours.

Given that Ms. Demings had previously suffered a mild CVA, likely as a result of clotting caused by atrial fibrillation, it was extremely important that she be placed on (and maintain) a regime of medication to reduce blood clotting. That is why Ms. Demings' treating physician prescribed the Xarelto. Ms. Demings entered Defendant(s) facility to rehabilitate herself. The family reports that she was doing very well, that she could communicate well, and that she was fully cognizant. According to the family, Ms. Demings was needing to gain strength in her hand. It was only after she stopped taking the medication that she suffered another, this time much more sever CVA that, according to

the family totally and completely incapacitated her. The medical records on June 8, 2012, indicate that any blood thinner that Defendant(s)had huniedly administered to Ms. Demings had not taken effect in time to stave off the CVA.

Since June of 2012, while taking the Xarelto, Ms. Demings' medical records demonstratethat she has not suffered another CVA.

See Kaper Report 3-a (Appendix A) (CR 25). The information contained in these

two reports provides adequate information to inform GNH of (i.) the specific

standards of care at issue, (ii.) the specific conduct of GNH that Demings has

called into question, and (iii.) how GNH's conduct caused injrrry to her. Further,

the information provided a basis for the trial court to conclude that the claims have

merit, and are they are not frivolous. For these reasons, then, the statements on

causation as provided by Kaper and Dr. Miller are more than sufficient to meet the

requirements of the Medical Liability Act. GNH seems to interpret the Medical Liability Act to require Demings to provide a level of proof that is more

attributable to what is expected at the final trial of this matter. Such is improper.

The reports provide reasoned analysis on the matter that provides a basis for

causation in this case. The trial court found the reports to be sufficient and denied

GNH's objections and motion to dismiss. Should this Court disturb the trial

court's decision in this case, such would be erroneous. See Van Ness v. ETMC

First Physicians,46l S.W.3d 140 (Tex. 2015).

t6

D. Alternativelv. this is a ma tter of res ínsa loouitur.

For the reasons stated above, the expert reports that were furnished were

sufficient to meet the requirements of the Medical Liability Act. To upset the trial

court's ruling would be erroneous. See Van Ness v. ETMC First Physicians,46l

S.\M.3d 140 (Tex. 2015). Alternately, however, Demings also respectfully asserted

in the trial court that an expert opinion in this case on causation is not required in

this matter because the doctrine of res ipsa loquitur applies. Res ipsa loquitur \s

applicable when the following two circumstances are present: (1) the character of

the accident is such that it would not ordinarily occur in the absence of negligence,

and (2) the instrumentality causing the injury is shown to have been under the

management and control of the defendant. See Haddock v. Arnspiger,793 S.W.2d

948,950 (Tex. 1990). Res ipsa loquitur is a rule of evidence by which negligence

many be inferred, it is not a separate cause of action from negligence. Id. With

regard to medical malpractice cases, res ipsa loquitur applies to those cases to

which it had been applied as of August 29, 1977, the effective date of the Medical

Liability Act. Tpx. Crv. Pnacr. & Rrv. ConB Ann. ç74.20I (Jones McClure

2015). Res ipsa loquitur remains applicable to medical malpractice cases where

the nature of the alleged malpractice and injuries are within the common

knowledge of laymen, requiring no expert testimony. Haddock, 793 S.W.2d at

951. The Haddock case describes examples of areas where res ipsa loquitur has

T7

18

been held to apply to medical malpractice claims: negligence in the use of mechanical instruments, operating on the wrong portion of the body, and leaving

surgical instruments or sponges within the body. Id. This is the sort of case in

which res ipsa loquítur applies. GNH clearly asserted in its own report that the

failure to administer the Xarelto to Demings "makes her a higher risk for stroke in

view of her diag. of atrial defibrillation." No expert is needed - causation is shown directly from GNH's own mouth. Put another wây, GNH, by failing to provide the

Xarelto to Demings caused her to suffer from the exact malady as what the

medicine is intended to prevent - a stroke. That is by definition res ipsa loquitur

As such, Demings would alternatively argue that expert testimony on causation is

not even necessary in this case.

CONCLUSION AND PRAYER WHEREFORE PREMISES CONSIDERED, Appellee Legatha Demings

respectfully requests that the Court deny Appellants Garrison Nursing Home and

Rehabilitation Center's and Garrison Nursing Home, Inc.'s appeal in this matter,

affirm the order of the trial court in this matter, remand this matter to the trial

court, and grant to her any and all further relief to which she may be justly entitled.

Respectfully Submitted,

L¡.w Onnrcn on SrrpHnN SHrnns, PLLC Attorney and Counselor atLaw 123 San Augustine Street Center, Texas 75935 Tel. (936) s98-30s2 Fax. (936) 598-3031 stephen@shireslawfi rm. com

By: /s/ Stephen Shires \il.Stephen Shires Texas Bar No.50511894 Attorney for Legatha Demings

CERTIFICATE OF SERVICE

This is to certi$ that on the 9th day of November,2015, atrue and correct copy of the above and foregoing document was served on the following in accordance with the Texas Rules of Appellate Procedure:

Mr. David W. Frost 1121 ESE Loop 323, Suite 200 Tyler, Texas 75701 Facsimile (903) 58 1 -3701 /s/ Stephen Shires Stephen Shires

CERTIFICATE OF' WORD COUNT COMPLIANCE I certifu that the word count of this Appellee's Brief is 5801 words. I relied on the word count function of my word processor to determine this count. I certiSr that this brief compliance with the typed-volume limitations of Texas Rule of Appellate Procedure Number 9. It has been prepared in proportionately spaced typeface in 14 pt. Times New Roman font.

Dated: November 9,2015

By: /s/ Stephen Shires Stephen Shires

I9

20

INDEX OF APPENDIX A. Expert Report of Pauline Kaper B. Expert Report of Dr. Keith Miller C. Van Ness v. ETMC First Physicians,46I S.W.3d 140 (Tex. 2015)

D. Tpx. Ctv. Pnacr. & Rstvt. Coop Ann. ç74.201(Jones McClure 2015)

Tsx. Ctv. Pnecr. & RBIr,l. Coos Ann. 574.351 (Jones McClure 2015) Tpx. Cw. Pnacr. & Rsivt. Coop Ann. ç74.403 (Jones McClure 2015)

o

Append 1X

DISAßTLTTY NHHDS 116 Tenaha Street Center, Texas 15935 Phone: (936) 59i-8900 Pauline Kaper, R.N. Facsimile: (936) 598-2300

JanuarY 10,2014 Mr, Stephen Sirires '\ Law Office of Stephen Shires PLLC 403 Nacogdoches Street, Suite 1

Center, Texas 75935

RE: Legatha Denmùngs v. Garrison Nursing Home and Relmbilitation Center, et. al,, Cause Number CÍ+¡O¡ 19; in the District Court of Nacogdoches County, Texas

Dear Mr. Shires,

In response to your request for me to review the above-matter, the foliowing is my report, It is my r:lcle¡siandin[ ttrut yóu hnvc" instituted suit against Defendants Ganison Nursing Home an¿ Ránabilitatior¡. Ceirter and Ganison Nur:sing Home, Inc., alleging that they, through their directors, officers, employees, and/or agents, committed negligence (and potentially gross tnedisnlio¡:l to neglige.rroe) against you]: ciient, Ms. Legalhtr Ðerrlnings, by fai.liilg Tr¡ adnünister hei tliat had been prescribcd 1o her by her treating physician. \iou allege thal sl,le {.lien suff'ered a severe stroke that the said medication was intendecl to prevert. It i.s rriy furthe¡: unrlc.lslnnclin¡¡ that you are assertí¡g tJrat ìJeft¡clant(s) also conlu,i{ßcl negligencc by failÍng to itave a ¡:ltlcetlttre in piacc to insure tliat rrrrors ir: î:.anscription of ¡:eço¡:tls (as was ilte ca,se in thj.s maller) do nnl ardlor are iclentified ancl coueclecl in n timely rnârJticï. Thu fbllorl'irrg consti{irtes m.y 'sáor o1:inion as to the relev¿ult standard of care govcrrrirrg nuruitrg honre concluct, how Def'end¿rrts proximately violate,cl their duties/stanrJarcl crf care to Ms. Dcmmings, and how those violations caused Ms. Demmings' injurY.

A nnlicablc Stantlard ol' (-*arc

In general, nursing facilities have the following duties, among others, as a part of their applicable standard of care:

1. to provide lcsidenls tliith rinrely ¿urd accr.uate care ¿Ì:ìsesËil1eüts ¿utcl necessal¡' srqlcrvision; 2. to use ïeasonable c¿ire in trealing resiclc¡rts rvith the cie'gree ol, sk"ilJ ancl learuing orrlinarily possessed and used by nursing home facilitics in the salrc ür sirnilar locality; nrrcl

I

and rnaintaining the higirest practicable level of physical'

3. to assist residents in attainiirg mental, and psychosocial well-being'

parlicular duties that are Included within these general duties are the following particularly relevant in this case:

o the duty to make sure that residents receive all of their medications timely and in the approPriate doses;

arrcì/Or: Úl'clers are acculalely o the rluty to make sure that the rcsirienl,rs ¡:rescliption(s)

cha.rl,n^/reoortis and properly sent transcribed by the rur::sing home stalf ontr¡ ilìe residctrt's to be f,riled bY the PharmacY; and accu¡acy of said tLanscriptions'

the duty to have a system in place that insures the " til. to N{.tet M ch d Slatrdnl'tls ol'Care .L

Nursing Home and In this matter, Ms. Demrnings was a resident at Garrison she rrad bee' rliagnosed with r{e}nbilitati*n center for the purpose of seeking rerrabiritatior:.

carciiovascnlar ¿ccident ("cvA" or arrjar fibriJ,ration and p."uio"Ëry suffered a milã iscrrcnric ,*stroke,,), and as a result, her ph.yrician had prcscriboel xarelto (20nrg) to be Hkcn to reduce the greltcr a¡rd much mole scvei:e) CVA' The rislc that she would suffer atrr:ther (and possibly n:cclicalicxr *u, prup*,ìf oraerert by Dr. Ilen.Dis ir*llrnun. I-}Orryer¡¡,r. i1** tr¡ ail err:(.r: in the h:anscri¡:tir:n of the ,oa*í Uy a nulfÌe ín the cnrploy of De'f'errdar:f(s)' thc Xarclto was nilt included for Ms' Demmings' According to the in the list of medications that Defendant(s) wås tó provide Medication Error Report generated by Defendant(s):

hospital)] - Ies'

Error in transcription of order [(written doctor's order from ordered along [with] ali arrived ater l,oolp.m. on a Friday. This medication was other meds nnr,, riu,:si,rg home ¡rl ur,'.,,nry - nur.se lrarlscrillìng cUrlers had to have all meds 1rh*ärruoy oirJer sheets and faxcti itt 1o 1r¡nrruacy by 6 p'm' so "uitt*n ", ¿*v-"ãrrá te deliverea thai night. Nurse transcribing faiied to transcribe this med. to MAR' Al oversight.

orders are At that time, Defendant did not appeã to have a system in place to. insure -that for Ms'

i"ranscrihecl proirerly, Å.s a result, ihe pharL,racy did not frll a prescriptiol.for Xarelto did not administer any llennri:rgs, ar:cì from N,l;ry 25, ZOiZ, through iune,S, 2-012,Defendant(s) Xarelto tä lr¿s. Demmings, as her doctor had prescribed'

'Further, it appears from that same Medication Error Report tha! al some p-oint on June 8'

2012, after O"f"oa^tttqs) realized that they made a mistake in not giving Ms. Demmings the of the medication (60 mg) in a very Xarelto, fufr. n"*-ioËr',h"r, was adminisiered th¡ee doses ,frot pétioa of time. This creates a veïy dangerous situation for Ms'

Demmings'

onJune8,20!2,Ms.Demmingssufferedasubsequent,verySevefeCVA'

For reasorrs that sh6¡.lcl be iqr¡rarent on ll:ßir face, it is irn¡:crntive thtt' nnrsing holnes nmount to its vesidsr¡'ts' cle::tninly, this i's an administer the prr:per rneiiioation i,:r'the proper

3

even to a healtliy important issue for all medical personnel, including pharmacists, because dose) rnay be extremely harmful, toxic p"rron, ingestion of the wt'ong mådication (or the wÏ91g and in some cases even lethal. This concern is magnified exponentially for residents in nursing Further, the failure to hornes, many of whom are already in a weakened physical condition'

can complicate continue a rágime of medication that has already been introduced into the body the pliysical l::oblems that the patient suffers from, and may cause problems with any other medications that he or she is taking.

that his or her Therefore, it is crucial that when a new resident is admitted to the facility it comes.to prescriptions and medications'

information be properly transcribed, especially when omitted, could lead to For exampl., ,ho.,íd information about an allergy to a medication be such a very dangerous situation. The exact same thing is true here where the enor in the transcription of thå order/records caused Defendants to fail to administer a medication to Ms. Demmings, the purpose of which was to prevent any further (or more severe) strokes' As such, it is extremely irnportant that ilie facility tav" u proô"rr in piace io verify that the transcription is correct, or that any mistake be caught aå quickly as possible and fixed. No such process existed in this case, and as a result of Ms. Demmings .toi tuking the Xarelto, she suffered a severe stroke while in the care of Defendant(s).

C ¿rnd th

Xarelto is a blood thinner, the precise pulpose of which is to reduce the risk of stroke in patients who su1'¡sr l1:::r nlrjal fib¡:illaiion. Def'erxiuurt(s) f'ai.led ln providc Ms. Dentnìngs rvith the Xar.eito for f:i:uïtcen (14) clays. She thsn lt¿lci a severe sir<lke, rvi¡ich would liavc' in all tltc Xarelio, reasonable medical probabiliiy been avoided had \4s. Denrmîngs bee¡: ¡.c1minjsfi:led the pu¡pose of which was to plevent a stroke'

Further, the Medication Error Report generated by Defendant(s) clearly recognizes the r(111{)' to the questior: <lf'

ro¡lenr of not -adr¡inis1elirlg the Xarclto tr: Ms. Demnrin¡1s. Checl*"ing rvhelher ' the ,fcrro¡'', ({hÍlure to atlmi:ri.ster ti]s X.ar'{,!lto To il4s. Deni:Ïings), "could havt: endangered the iife or welfare of the patient," thc Directal'of Nutsing $ta1'ed:

Makes her a higher risk for stroke in view of her diag. of atrial fibrillation (not taking it) Taking the medication makes res, higher risk for a bleed'

Atrial fibrillation causes the heart to pump irregularly, and the concern is that pooling biood can clot in the upper chambers of the heart. These clots may then sometimes travel ti:uo¡gh the body to fliô b::ain, with a stroke being lJ:e result. As a result, rn¿ìny patients clingnTrsed with a;id fi.]:rillation are prescribed a blood thinne"r, one of r'r'hich is Xa::elto.

Xarelto is designed to block the enzyme called Factor Xa. Factor Xa is the activated form of the coagulatión factor thrombokinase, known eponymously as Stuart-Prower factor. Facto¡ X is an erTzyme, a serine endopeptidase, which plays a key role at several stages of the coagulation systcm. Tnhibition r¡l Faclor Xa intcr:rupts the ilrtr:insic ancl exü"iÛsic pzrthrvay of tlie i:to|d coagulation cascerde, inhilritir:.g both tirrornbin forrnation atrd developnent of thlomhi' Factor Xa=is inactivated by protein Z-dependent protease ir:ldllitor ("ZpI"). a serine protea$e irllibitor (scrpi6). ey infriúiririg Factor Xa in this way, Xarelto is abler to inllibit the detnge.rous blood ctoit¡rg that can be a result of a patient suffering from ¿rt¡:ial fibrillarion. Xare"lto is well

4

absorbed from the gut, and maximum inhibition of the Factor Xa occurs four hours after a dose.

The inte¡ded effect lasts approxirnateiy 8-12 hours, but Factor Xa activþ does not return to normal within 24 hours.

Given that Ms- Demmings had previously suffered a mild CVA, likely as a result of clotting caused by atrial fibrillation, it was extremely irnportant that she be placed on (and maintaìn) a regimã of medication to reduce blood clotting. That is why Ms. Demrnings' treating plrvsiciaá pr:escr.ibccl the Xarelto. Ms. l)cimnings entareel De'ftnclcnt(s)' facility.ttl rchnbilit¿rte Treiself. Tire fan:ily reports that she was doirr,g verlr çsll, thnt she cnuJçl ocunnlunic¿tl.e r,r'ell, ancl that she was ful1y cognizant. According to the farniJy, M.s. J)en:ntings was r:ecclittg ft: gitin -

strength in her hãnd. It was only after she stopped taking the rnedication that she suffered unoth-"r, this time much more sever CVA that, according to the family totally and completely incapacitated her. The medical records on June 8,2012, indicate that any blood thinner that t)efcncta¡t(s) had huniedly administered to Ms. Demmings had not taken effect in time to stave r:ff the CVA".r

Since June of 20!2, while taking the Xarelto, Ms. Demmings' medical records demonstrate that she has not suffered another CVA.'

$UUttlt.r,¡ f.llxtt"l.{.()Hi¡li'ol\ Defendant failed to meet its applicable standard of care in this case. Defendant breached the general and specific duties that it owed to Ms, Demmings. Namely, Defendant:

. breached. its duty to provide Ms. Demmings with necessary supervision; . breached its duty to use reasonable care in treating Ms. Demmings with the degree of skili and leaming ordinarily possessed and used by nursing home facilities East Texas;

¡ breached its duty to assist Ms. Demmings in attaining and rnaintaining the highest practicable level of physical, mental, and psychosocial well-being;

. breached its duty to make swe that Ms. Demmings received all of their medications timely and in the appropriate doses - nameiy the prescribed Xarelto;

r breached its duty to make sure that Ms. Demmings' prescription(s) and/or orders were accurately transcribed by the nursing home staff onio her charts/records/orders and to properly send her prescription to be frlled by the pharmacy - namely failing to include Xalelto as one of the medications for the pharmacy to fill; and , breached its duty to have a system in place that insures the accuracy of the transcription of Ms. Demmings' prescription order. Defendant's breach of its duties (as described above) in this case directly and proximately caused the injuries suffered by Ms. Demmings -namely the stroke she suffered on June 8,2QI2. What makes matters even worse is that the family members state that they repeatedly informed

t ln fact, administering such a large arnount of Xarelto in such a short period of time after uot giving it to Ms. Demmings for two weeks was likely defrimental to Ms. Demmings, and it likely also contributed to causing the severe CÍA. If this was done without the express direction of the treating physician, then this wouid constitute another violation of the standard of care by Defendants.

the Xarelto' and the nursing home staff that Ms. Dernmings was supposed to be receiving to see if a mistake ufparently"no one in Defendant's organization decided to check the records had been made. It was only whãr Ms. Demmings was being taken to the hospital that Error Report generated by Defendant(s) realized their mistake. According to the the Medication Defendant(s):

How was the error discovered? Prior to transfer to Hosp. Chg. Nurse_When talking [with] Dr. coffman realized medication not on MAR & reported to c'

'When?

Hughes. 9:00 AM 618112.

i have developed the foregoing opinions after reviewing:

n Various medical records of Ms. Demings, specifically including, b{ ryt limited to, 22,2012, and June 8, records from Nacogdoches Medical Center foi admission on May 2012;

. .,Medication Enor Report" generated by Defendant(s); and The r Other information provirled by Ms' Demmings' family'

Date: JanuarY I0,20I4

Pauline Kaper,

Ischemic Attack ('TIA") on March 3, ¡ Although, it appears that Ms. Demmings may have suffe¡ed a mild Transient Z-Of ¿, ulîrórt t*o CZ) years later. The farnily reports that all symptoms of the TiA had resolved themselves by the time Ms. Demmings reached the emergency room'

Medication Error Report Date of Report

ûu'.rx,^ S Patient P hysicia n st

Room No Date of Error Time of Error .l\ M( Medicat ion Give Do tven Rte. of Adm

What was Ph Ê What was your source of information regarding the medicat¡o ? f] Kardex E iven cr'urt f-l Verbal order 0 . Reason for making a YeÞ,

Cou the l¡ PA 1 n or welfare of the pat 'n{,( /,

Yes f] ruo Explain

'r What is the actual effect of the error made on the patient?

scovere ã '¿> When d2 Who notif ied the physician?

When?

Hes he seen the patient since the error was made7 úr", n¡ro What precautions can you take to prevent a similar error

nð re¡ Nurse mð ettot o gnature o urslng

S¡9n¡t U Ph ysic lan D ate

f orm 3117 BRtcGS, oes Mo¡nes, towa 50306 PRINTEO IN U.S.A MEDICATION FRRNR RtrÞñT¡T

Curriculum Vitae of

LOIS PAULINE I{APER, R.N. B7B County Road |oaquin, Texas 7 5954-33L8 Phone 936'248-45t4

JltilSLo_NAt;

Marital status Married. Date of Birth: August 3,1939.

ED"lJç,ÁTION,I Alvin funior Colìege August t97Z - Associate inApplied Science Degree San Iacinto Junior College May I979 Nursing Home Administrator #4392

LICENSE:

Registered Nurse #2'28t64 Nursing Home Administration

T'liAclTI,l\1ft.

August - November lg}4lnstructor Alvin communify college Meãication Administration course to certify Medication Aides

UXJIIil};W A-¡¡eust lq72 - Itt Registered Nurse at U.T.M.B. in Gaiveston, Texas

¡:ø - ¡¡*1979 Iulv ll974":.Mav bii".totof Nursing at Manor Care - Texas City, Managed 40 nursing facility employees and staffing for a 110 bed nursing home.

Ma¡' 197? - Itlcvenrbel:l Administrator at Manor Care - Texas City. Managed 100 empioyees. Operated the facilÍty within budget. impìemented a safefy prog{am which réduced lost time accidents. One year with no accidents. Reduced the aged accounts to a minimum. Developed an incentive plan and reduced sick time to almost zero, Developed policies and procedure manuals, During my admÍnistration, the facility maintained a Superior Rating with the Texas Department of Health. Increased the private pay census to 50% and had a waiting list for admissions.

9!3 ;- Xe!:çt g¡lil!-q ¡-r-ll y' I h e S l- a tc Il r¡ a-r-dlf'NUr¡iug$ul e,:

Ss p t c¡1i¡elå-1 Manor Care Nursing H;r; received a direct hit by Hurricane Alicia'

My staff of twenty-two ãmployees and I cared for over ninety residents'

State

Board of Nursing necognized my facility for the job that we did during the hurricane.

t8 3 --D ecq ÌlrJ:E: !lj¿84 D elcem h f¡*'!. R%irt.;d Ñu.r. Coordinator of Home Health ServÍces at Memorial Hospital of Galveston County. Employed to start up a new department of Home Health Service, Coårdinating services in the home for NursÍng, Physical of I and Therapy, Occupational Therapy and Speech. Coordinated a staff *orkud wit thã doctors and S-ocial Services to receive referrals. Developed forms, policies and procedures manual to develop the Home Health Department.

I_u¡sjggå:U.a rshlåB-6* 'itot"

of Texas v Autumn Hills Convalescent Center, Inc'

to work Requeited by the Assistant Attorney General of Texas, David Marks witir the prosecution of the staff and management of Autumn Hill Nursing Home. ihe care concerned the multiple deaths of nursing home patients but specifically Elnora Breed, As reported, "ln November L978, Mrs' Kaper, R.N. a nursing consultant was hired by Autumn Hills NursÍng Home after the state health ãepartment found problems at the home. Mrs' I{aper was to create and put.in place a plan of correction for the problerns' Mrs' Kaper consulted with the staff and patients for three weeks and the state came back and the problems *"ru ,eroÍved at that time." Mrs. I(aper worked with the special prosecutor during the six month trial where she testified multiple times cbncerning the murder case. The .State of Texas v Autum Hílls Convalescent Center, Inc. revolved around the widespread care and deprivation and harm caused by a corporation's financial decision to cut esiential services and supplies in order to maximize profits.

J¿rntl¡rr.v 1.9tF - L9B6 Mu.,o. Healthcare, lnc,: Asked to trouble shoot for a nursing home that was in trouble as Administrator for Clear Lal<e Care Center in Webster, Texas' This nursing home was in serious trouble with multiple deficiencies and placed on vJndor hold by the state of Texas, Brought facility out of vendor hold in forfy-six daYs'

Agssåt-l-9$ú:l.u-us,l-995 M".,o. Healthcare, Inc. Began as a trouble shooter for the twenty nursing homes in Texas, Arkansas, Oklahoma, and New Mexico. At this same time was NursÍng Home Administrator for Pine Grove Nursing Home in center, Texas. Managed 80 employees. Operated the facility within budget' 1-10 Bed skilled facilitY, tuucl-9tì{l- Received Nursing Home Administrator 0f The Year Award frorn the Texas Board Of Nursing Home Administrators'

lru$-f9 i.ü-:Awust ? 0-il 5 ;,1"*î"g H"-" e¿*inîritttor of Green Acres Nursing Home Center, Texas' f"frn"gãa gO emplo;;s. Operated the facility within budget'

L09 Bed

skilled facilitY.

Ian\rary ?Û06 - Il'qstl¡rf fWii*ì,*¿ Inc"

Nut:se em¡-rlr:yed by Disability Needs'

Wo'rl< rlirectly wifli iUfutt*yt anil Pamela Cunningham non'attorney dis ability rePresentative.

disability clients that Maintain aìl medical records received on the B0 to 100 are represented at anY given time' prepar.e an outline the ciictll and his or her physical and mental status' witilin the outline "f"¡rit read and write about all medical records on each and outline the reason for the every visit. From the medical records state in the and the plan of visit, the diagnosis, the current vital signs and description, action for that client'

required by the Texa¡ Meet with every client and prepare all documentation Discuss by phone with Disability Determination Serviies in Austin, Texas. physicians and meáical personal who are making thtl clcr:isions concerning they have all current ifrå mectical conditior, ãf th. client to make sure documentation.

Appendix B

NO. C-14-30319

LEGATHA DEMINGS $ IN THE DISTRICT COURT Plaintifl, $ $ v $ 145th JUDICIAL DISTRICT $ GARRISON NURSING HOME AND $ REHABILITATION CENTER AND $ GARRTSON NURSING HOME, INC. $ Ðefendants. $ oF N.A.COGDOCHES COUNTY, TEXAS

PI,AINTIFF' S SUPPLEMEIÍ.TIA.LITXPERT REPORT

COMES NOW Legatha Demings ("Demings" or "Plaintiff') and files this her Supplemental Expert Report in this matter, and in support thereof respectfully shows the Court

as follows:

l. On April 6,2075, the Court heard Defendants' Motion to Dismiss, wherein Defendants

assefted that the expert report proffered by Demings in this matter was deficient.

2. On April 6,2A15, the Court signed zurd entered an Order (filed on April 7,2015) that

denied Defendants' Motion to Dismiss, but found that the expert report was deficient in

that "it was not created by a physician as required by Section 74.351(r) (5) (c)."

3, The Court granted Demings a thirty (30) day extension to cure the deficiency pursuant to

Section 74.351.

4. Demings now supplements the expert report that she previously filed in this matter with

the attached expef report of Keith E. Miller, M.D., which, among other things, addresses

causation in this matter. Dr. Miller's report addlesses all the issues of the case, cures the

deficiency iclentified by the Courl, and is supplemerfal to the expert report previously

filed by Plaintiff in this matter.

5. Dr. Miller's expert report and curriculum vilae are attached hereto and incorporated by

2

reference herein (and in the previous expert report from Pauline Kaper) for all pulposes

as if recited verbatim.

Respectfully Submitted, Lnw Ornce oF STEPHEN SHnes, PLLC Attorney and Counselor at Law 123 San Augustine Street Center, Texas 75935 Tel. (936) 598-3052 Fax. (936) 598-3031 stephen@shireslawfi rm. corn

By: /s/ $iephçn Sllires W. Stephen Shires Texas Bar No. 505f 1894 Attorney for Legatha Demings

CERTIFICATE,qI SS.ßVICE

This is to certiS that on the 5l' day of May, 20!5, a true and correct copy of the above and foregoing document was served on the following in accordance with the Texas Rules of Civil Procedure:

Mr. David W. Frost 1121 ESE Loop323, Suite 200 Tyler, Texas 75701 Facsimile (903) 581 -3701 lsl Steplren shtuei Stephen Shires

Ku) 8, l4¿/J")r, /î4,5,, 4,r4,,,.4,P, ø¿O'/atalt" &l¿eá' ' &nle¿, '/e'z<t¿ 759.?.5 (rsø¡ srs-zz/6 . 4"" (rsø) s98-5059

May 4, 2015

Mr. W. Stephen Shires, Attorney at Law The Law Offices of Stephen Shires, P.L.L.C" 123 San Augustine Street Center, Texas 75935

Re: Ms. Legatha Demings

Dear Mr. Shires:

Thank you for allowing me to review this case on behalf of Ms. Legatha Demings. My opinions in this report are based on the information I have reviewed to date and my education, training, and direct experience in the diagnosis and treatment of patients with conditions similar to those of Ms. Legatha Demings as described in the materials I have reviewed and discussed in thið report. Èach opinion is based on reasonable medical and nursing, probability and certainty.

BACKGROUND

My name is Keith E. Miller, M,D., and I give this report for the purpose of complying with any applicable provisions or codes. As my attached curriculum vitae demonstrates and which is incorporated into this report by reference, I am a Medical Doctor currently licensed to practice in the State of Texas and formerly licensed in the States of Louisiana and Arkansas. I currently practice in nursing homes similar to Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, I have had numerous patients similar to Ms. Legatha Demings. I am board-certified in Family Medicine and I have been in practice for more than 25 years. By virtue of my education, training, and direct experience, I am qualified io render opinions regarding the standards of care as they apply to this particular case.

i

I am over the age of 18, of sound mind, and capable of preparing this expert medical report. My opinions in this report are based on the information I have reviewed to date, as well as my education, training, knowledge, and direct experience in the diagnosis and treatment of patients with conditions similar to those of Ms. Legatha Demings, as described in the materials I have reviewed and discussed in this report. My opinions are based on reasonable medical and nursing, probability and certainty. My opinions concern the care and treatment received by Ms. Legatha Demings, or lack thereof, in regard to the applicable standards of care and the manner, in which the care rendered to Ms. Legatha Demings by the healthcare facility in this case, fell below the standards of care and caused the illnesses of Ms. Legatha Demings,

It is impossible in an expert medical report to marshal all of the proof regarding the standard of care, breach, and causation and include it within my expert opinions in this case. My report represents a good faith effort to inform the health-care facility of the specific conduct that I am calling into question and to provide a basis for anyone to conclude that the claims in this matter have merit. Obviously, âñv defendant in a medical malpractice case has medical knowledge of medical terms which, when read in context with my opinions, will be clear to any competent healthcare facility,

This report will provide a summary of my opinions, as of this date, regarding: 1) the applicable standards of care at issue in this case; 2) how the apþticanie siandards of care were violated and breached; 3¡ how the violations and breaches of the applicable standards of care resulted in the illnesses of Ms. Legatha Demings; and 4) what the health-caie facility in this case should have done differently to prevent the illnesses of Ms. Demings. I reserve the right to amend, or add to, my opinions upon review of new records, testimony, or facts, as they become available, or upon further review of existing materials.

MY EXPERTISE

I am a medical doctor currently licensed to practice in the State of Texas and formerly licensed in the States of Louisiana and Arkansas. I have been a licensed medical doctor since 1985, have been practicing medicine continuously since then, including during the time of this claim, and as part of my practice, have been, and am currently, involved in the diagnosis, care, and treatment of many patients similar to Ms. Legatha Demings. I am familiar with the diagnosis and treatment ofpatients with cerebral vascu[ar accidents (strokes), hypertension, related illnesses and their complications, along with any other conditions experienced by Ms, Legatha Demings. I am familiar with the standards of care applicable to physicians, nurses, hospitals, nursing homes, rehabilitation centers and their statfs that treat patients such as Ms, Demings. Report of Keith E. Miller, M.D Page2

My training is similar to the training of the physician, healthcare providers, nurses, and facility staff in this case,

After graduating from medical school in 1985 at the University of Arkansas, I received additional training and experience in a family practice residency program which lsuccessfully completed in 1988. I have over 25 years' experience practicing medicine in office settings, hospitals, nursing homes, rehabilitation centers and emergency departme.nts. I am board-certified in Family Medicine by the American Board of Family Medicine, and have been in practice for more than 25 years. By virtue of my education, training, knowledge and direct experience, I am qualified to render opinions regarding the standards of care as they apply to this particular case, including the standards of care applicable to physicians, nurses, hospitals, nursing homes, rehabilitation centers and their staffs treating patients for strokes, hypertension, related illnesses and their complications, along with any other conditions exhibited by Ms. Legatha Demings, because I have treated many patients with these conditions.

A COPY OF MY CYl9 AI:ÏA9HED

My attached curriculum vitae is incorporated herein as part of my repoft,

MATERIALS REVIEWED

The specific records and documents concerning Ms. Legatha Demings which I have reviewed include the following:

1) Medical Records of Ms. Legatha Demings from Nacogdoches Medical Center in Nacogdoches, Texas; 2) Garrison Nursing Home and Rehabilitation Center in Garrison, Texas; 3) Plaintiff's Original Petition; and 4) Expert Nursing Report of Pauline Kaper, R.N.

slgNltlcANï tacrq Ms. Legatha Demings is an adult female whose date of birth is April 28, 1945. ln May 2012, Ms. Demings was 67 years-old. She had a past medical history of hypertension, atrial fibrillation, congestive heart failure, emphysema, and a previous transient ischemic attack (TlA).

on May 22, 2012, Ms. Demings was living at home. she suddenly developed slurred speech, weakness in her extremities, and she fell out of bed. She was taken to a ital in Carthage, Texas, and then subsequently Report of KeÍth E. Miller, M.D. Page 3 transferred to Nacogdoches Medical Center in Nacogdoches, Texas for further evaluation and treatment.

ln the hospital, Ms. Demings was diagnosed as having had a cerebrovascular accident (CVA) or stroke, Ms. Demings was discharged from the hospital on May 25, 2A12. ln his discharge summary, Ms, Demings' physician documented that this patient's stroke was of ".,.ischemic origin, most likely caused by her atrialfibrillation."

ln order to treat Ms. Demings' condition and prevent further strokes, her physician discharged her from the hospital on a blood-thinning medication, Xarelto. This physician stated in his discharge summary that Ms. Demings would be "...started (on) Xarelto for her anticoagulation to avoid further strokes..."

On May 25,2012, Ms. Demings was discharged from the hospital and admitted to Garrison Nursing Home and Rehabilitation Center in Garrison,'Texas for further recovery and rehabilitation. According to Ms. Demings' physician, this resideñt had begun to make some improvement as evidenced by improvement in her speech and increased movement of her left side.

After being in the care of Garrison Nursing Home and Rehabilitation Center for less than two weeks, Ms. Demings became "confused, combative, and unablè to communicate". On June 8, 2012, she was taken by emergency medical seruices back to Nacogdoches Medical Center for emergency evaluation. There a computerized tomography (CT) scan of her head revealed an ischemic infarction of her brain consistent with a stroke.

One of Ms. Demings' consulting physicians, a neurological specialist, documented in the medical record that Ms. Demings had suffered a "Cerebrovascular accident extension with newly developed global aphasia, aphasia and left-sided flaccid paralysis".

Ms. Demings remained in the hospital for 12 days, and was discharged on June 20, 2012. At the time of her discharge from the hospital, Ms. Demings' physician noted in his discharge summary that this patient's overall medical condition had deteriorated as a result of her stroke she suffered at Garrison Nursing home and Rehabilitation Center, to the point that Ms. Demings was made a do-not-resuscitate status such that if she experienced a cardiovascular or respiratory failure, she would not be intubated or placed on a ventilator or breathing machine.

A "Medication Error Report" made by th e nursing statf of Garrison Nursing Home and Rehabilitation Center on June 8, 2012, documented that from the Report of Keith E. Miller, M.D" Page 4 time Ms. Demings was first admitted to this facility on May 25,2012 until the time of her stroke and transfer on June 8, 2012, Ms. Demings was not given her blood-thinning medication, Xarelto as ordered by her physician. This medication had been ordered to be given in a dose of 20 milligrams (mgs) at bedtime daily.

This same report stated that "res. (resident) arrived after 5:00 pm on a Friday. This medication (Xarelto) was ordered along (with) all other meds from nursing home pharmacy - nurse transcribing orders had to have all meds written on pharmacy order sheets and faxed in to pharmacy by 6 pm so they could be delivered that night'

The Medication Error Report went on to document that a nurse at this nursing home "failed to transcribe this med (medication) to MAR (Medication Administration Record)"..."an oversight". A question on this same form asked "Could the error have endangered the life or welfare of the patient?" The responsible nurse completing the form answered the question with "Makes her a higher risk for stroke in view of her diag (diagnosis) of atrial fibrillation."

On a subsequent hospitalization on August 5,2012, in his pre-operative history and physical, one of Ms. Demings' physicians documented what had happened to her during her stay at Garrison Nursing Home and Rehabilitation Center from May 25,2012 through June 8, 2012. This physician stated that prior to her first admission to this nursing home, Ms. Demings "was found in atrial fibrillation. She was started (on) Xarelto, Apparently,.. did not follow-through in the nursing home, and she had.,,strokes, disabling, with severe-. She was rendered substantially disabled."

This physician also documented in his discharge summary of this Au$ust 5, 2012 hospital stay, the importance of a patient such as Ms. Demings who sutfered with atrial fibrillation, to always remain on a bloodthinning medication such as Xarelto. He stated that "She is to continue with Xarelto...lnstructions were given to the family to make sure that this medication is never stopped."

,F"AMTUARTTY W|TH THE STANDAFp OE çARE

At the time of the care and treatment of Ms. Legatha Demings by Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, from May 2012 through June 2012, I was familiar with the minimum medical standards of care applicable to the assessment, diagnosis and treatment of patients with strokes, hypertension, and related illnesses, as well as their complications and other medical conditions similar to those experienced by Ms. Legatha Demings and described in the referenced medical records, I am familiar with the medical and nursing standards of care for the above referenced conditions applicable to Report of Keith E. Miller, M.D, Page 5

Garrison Nursing Home and Rehabilitation Center in Garrison, Texas. The minimum standards of care for treatment of patients with similar signs, symptoms, and conditions as Ms, Legatha Demings that are the basis of this report, are national standards of care and do not differ from community to community.

From the time of the medical treatment of Ms. Legatha Demings from May 2012 through June 2012, and through the present, I have had an active clinical practice as a family practitioner in Center, Texas that includes providing care to adult patients in nursing homes and rehabilitation centers, such as Ms. Legatha Demings. During my career as a family practitioner, I have worked with and or supervised medical office statf, hospital staff, nursing home statf, and rehabilitation center staff, including medical technologists and nurses, in the care of my patients. I have also participated in the development and use of protocols, policies and procedures for the care of patients with strokes, hypertension, and related illnesses, as well as their causes and complications, including adults such as Ms. Legatha Demings. ln addition, based on my education, training, knowledge, and direct experience, I am familiar with the accepted and expected, standards of care, as listed below, for nursing home and rehabilitation center facilities, who take care of patients with conditions such as strokes, hypertension, related illnesses, and their complications, and can offer opinions on the standards of care, the breaches of the standards of care and the causation of the injuries from these breaches.

ln my medical practice, I routinely rely on medical records, nursing records, lab reports, diagnostic tests and images, consulting physician reports and other patient data, I consider materials of this type to be generally reliable, unless evidenced othen¡rise, and they are the type of materials routinely relied upon by physicians and clinical staff in providing care to patients.

C"AqF SIPECIFIC EXPERTISE

At the time of the medical treatment of Ms, Legatha Demings, from May 2012 through June 2012, I was treating patients with symptoms similar to those experienced by Ms, Demings. I am familiar with the accepted medical and nursing standards of care applicable to the assessment, diagnosis, and treatment of patients with strokes, hypertension, and related illnesses, as well as any other medical conditions similar to those experienced by Ms. Legatha Demings during that time as described in the referenced medical records, I am familiar with the standards of care for physicians, nurses, and nursing home and rehabilitation center staff treating patients such as Ms, Demings. I am familiar with the medical and nursing standards of care for the above referenced medical conditions, including strokes, hypertension, related illnesses, and their Report of Keith E. Miller, M,D. Page 6 complications, as they apply to Garrison Nursing Home and Rehabilitation Center in Garrison, Texas. The accepted and applicable standards of care for the treatment of patients with similar signs, symptoms, and conditions as Ms. Legatha Demings, that are the basis of this report, are national standards of care and do not differ from community to community, and also apply to the specific medical care provided to Ms. Demings in this case. The accepted medical and nursing standards of care for the assessment, diagnosis, and treatment of medical conditions similar to those of Ms. Legatha Demings apply to all nursing home and rehabilitation center facilities. I know the accepted standards of care, the breaches and violations of the standards of care, and the causation link between the breaches and violations of the standards of care and the illnesses, of Ms. Legatha Demings, as they apply to Gamison Nursing Home and Rehabilitation Center in Garrison, Texas, on the basis of my education, knowledge, training, and direct experience.

I acquired this education, knowledge, training and experience through:

1) My attending, and successfully completing, medical school classes, and residency, that teach the evaluation, diagnosis, care and treatment of patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

2) Practical experience of diagnosing and treating patients with the same or similar conditions as Ms, Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

3) Discussions with colleagues at yearly conferences, seminars and meetings;

4) Study of technical works routinely published in textbooks, journals and literature concerning the evaluation, diagnosis, care and treatment of patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

5) My routine discussions and consultations with other physicians who also treat patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

6) My routine and regular contact with nursing hofne nurses, staff and residents who take care of patients with the same or similar conditions as Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications;

Report of KeÍth E. Miller, M.D. PageT 7) My knowledge and experience giving lectures and in-service conferences to the nurses and staff;

8) My experience serving on numerous hospital and nursing home committees; and

9) My observation of nurses and nurse conduct, supervising residents, and instructing nurses and residents in the evaluation, diagnosis, care and treatment of patients the same as, or similar to Ms. Legatha Demings, and for illnesses related to strokes, hypertension, and their complications.

FAC|L|TY - PATIENT RELATIONSHIP

Based upon the above facts, there was a facility-patient relationship established between Ms. Legatha Demings and Garrison Nursing Home and Rehabilitation Center in Garrison, Texas.

DUTY

There was a duty owed to Ms. Legatha Demings by Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, to do what a reasonable nursing home or rehabilitation center would have done under the same or similar circumstances, or not to do what a reasonable nursing home or rehabilitation center would not have done under the same or similar circumstances.

RFLHVANT STANDARU$ pt Ê_&RE lN lssl,F This section addresses some of the principal applicable standards of care that Garrison Nursing Home and Rehabilitation Center in Garrison, Texas and its staff should have met for Ms. Legatha Demings, specifically how Garrison Nursing Home and Rehabilitation Center and its staff breached the standards of oare and the causal relationship of the breach to Ms. Demings' illnesses and related complications. These standards are based on my education, training, and direct experience, and are reflected in the state and federal regulations that govern nursing homes, rehabilitation centers, and skilled nursing facilities.

The following standards, among others, are consistent with the standards of care that were required to be fòllowed by Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, and its staff as it concerns Ms. Legatha Demings:

1. TAC Ch apter 217 Rule S217.11 Standards of Nursing Practice (1) Standards ti cable to All Nurses, A ll vocational nurses, istered nurses and Report of Keith E. Miller, M.D. Page 8 istered nurses with advanced practice authorization shall: (A) Know and conform to the Texas Nursing Practice Act and the Board's rules and regulations as well as all federal, state, or local laws, rules or regulations affecting the nurse's current area of nursing practice;

2, TAC Chapter 217 Rule $2f7,11 Standards of Nursing Practice (1) Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice authorization shatl: (B) lmplement measures to promote a safe environment for clients and others;

3. TAC Chapter 217 Rule S2f7.11 Standards of Nursing Practice (1) Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (C) Know the rationale for and the etlects of medications and treatments and shall correctly administer the same;

4. TAC Subchapter H Rule 519.701. A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life. (5) Accommodation of needs. A resident has the right to: (A) reside and receive services in the facility with reasonable accommodation of individual needs and preferences, except when the health or safety of the individual or other residents would be endangered;

5. TAC Subchapter B Rule S{9.101 Neglect - A deprivation of life's necessities of food, water, or shelter, or a failure of an individual to provide services, treatment, or care to a resident which causes or could cause mental or physical injury, or harm or death to the resident.

6. TAC Ghapter 217 Rule 5217.11 Standards of Nursing Practice (1) Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (D) Accurately and completely report and document: (iii) physician, dentist, or podiatrist orders; (iv) administration of medications and treatments; (v) client responses(s); and (vi) contacts with other health care team members concerning significant events regarding client's status; (G) Obtain ínstruction and supervision as necessary when implementing nursing procedures or practices; (N) Clarify any order or treatrnent regimen that the nurse has reason to believe is inaccurate, nonefficacious or contraindicated by consulting with the appropriate licensed practitioner and notifying the ordering practitioner when the nurse makes the decision not to administer the medication or treatment.

7. TAC Chapter 217 Rule S217.fl Shndards of Nursing Practice (1)

åtil,çFI9:nPåHnInn#$, Report of Keith E, Miller, M.D.

î Page 9

registered nurses with advanced practice authorization shall: (F) Promote and participate in education and counseling to a client(s) and, where applicable, the family/significant other(s) based on health needs;

8, TAC Chapter 217 Rule 5217.11 Standards of Nursing Practice (1) Standards Applicable to All Nurses, All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (G) Obtain instruction and supervision as necessary when implementing nursing procedures or practices;

9. TAC Chapter 217 Rule 5217.11 Standards of Nursing Practice (1) Standards Applicable to All Nurses, All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (M) lnstitute appropriate nursing interventions that might be required to stabilize a client's condition and/or prevent complications;

10. TAC Ghapter 217 Rule S2f7.11 Standards of Nursing Practice (1) Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (T) Accept only those nursing assignments that take into consideration client safety and that are commensurate with the nurse's educational preparation, experience, knowledge, and physical and emotional ability;

11. TAC Chapter 217 Rule $217.11 Standards of Nursing Practice (1) Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall: (U) Supervise nursing care provided by others for whom the nurse is professionally responsible;

12. TAC Chapter 217 Rule 5217.11 Standards of Nursing Practice (3) Standards Specific to Registered Nurses. The registered nurse shall assist in the determination of healthcare needs of clients and shall: (A) Utilize a systematic approach to provide individualized, goal-directed, nursing care by: (i) performing comprehensive nursing assessments regarding the health status of the client; (ii) making nursing diagnoses that serve as the basis for the strategy of care; (iii) developing a plan of care based on the assessment and nursing diagnosis; (iv) implementing nursing care; and (v) evaluating the client's responses to nursing interventions;

13. TAC Chapter 217 Rule 5217.12 Unprofessional Conduct (1) Unsafe Practice - actions or conduct including, but not limited to: (A) Carelessly failing, repeatedly failing, or exhibiting an inability to perform vocational, registered, or advanced practice nursing in conformity with the standards of minimum Report of Keith E. Miller, M.D. Page L0 acceptable level of nursing practice set out in Rule 217 .11,

14. TAC Ghapter 217 Rule $217.12 Unprofessional Conduct (1) Unsafe Practice - actions or conduct including, but not limited to: (B) Carelessly or repeatedly failing to conform to generally accepted nursing standards in applicable practice settings;

15. TAC Chapter 217 Rule 5217.12 Unprofessional Conduct (4) Careless or repetitive conduct that may endanger a client's life, health, or safety. Actual injury to a client need not be established.

16. 42 CFR 483,20, 483.25.The facility must conduct initially a comprehensive, accurate assessment of each resident's functional capacity, a plan of care, based on a resident assessment, which will be used to provide care and services to attain the highest practical physical, mental, and psychosocial well- being;

17. 42 CFR 483.15- A facility must care for its residents in a manner that promotes quality of life and dignity;

18. 42 CFR 483.30- The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care;

19, 42 CFR 483.13, F 224- "Neglect" means failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness,

20.42 CFR 483.20 (k) (3) (l) - The services provided or arranged by the facility must meet professional standards of quality;

lllnesses Caused by Failing to Properly Administer Medications

Ms. Legatha Demings is an adult female whose date of birth is April 28, 1945. ln May 2012, Ms, Demings was 67 years-old. She had a past medical history of hypertension, atrial fibrillation, congestive heart failure, emphysema, and a previous transient ischemic attack (TlA).

Report of Keith E. Miller, M.D, Page L1

On May 22, 2012, Ms. Demings was living at home. She suddenly developed slurred speech, weakness in her extremities, and she fell out of bed, She was taken to a hospital in Carthage, Texas, and then subsequently transferred to Nacogdoches Medical Center in Nacogdoches, Texas for further evaluation and treatment.

ln the hospital, Ms, Demings was diagnosed as having had a cerebrovascular accident (CVA) or stroke. Ms. Demings was discharged from the hospital on May 25, 2012, ln his discharge summâry, Ms. Demings' physician documented that this patient's stroke was of "...ischemic origin, most likely caused by her atrialfibrillation."

ln order to treat Ms. Demings' condition and prevent further strokes, her physician discharged her from the hospital on a blood-thinning medication, Xarelto. This physician stated in his discharge summary that Ms. Demings would be "...started (on) Xarelto for her anticoagulation to avoid further strokes..."

On May 25,2012, Ms. Demings was discharged from the hospital and admitted to Garrison Nursing Home and Rehabilitation Center'in Garrison, Texas for further recovery and rehàbilitation. According to Ms. Demings' physician, this resident had begun to make some improvement as evidenced by improvement in her speech and increased movement of her left side.

After being in the care of Garrison Nursing Home and Rehabilitation Center for less than two weeks, Ms, Demings became "confused, combative, and unable to communicate". On June 8, 2012, she was taken by emergency medical services back to Nacogdoches Medical Center for emergency evaluation. There a computerized tomography (CT) scan of her head revealed an ischemic infarction of her brain consistent with a stroke.

One of Ms. Demings' consulting physicians, a neurological specialist, documented in the medical record that Ms. Demings had. s.uffered a "Cerebrovascular accident extension with newly developed global aphasia, aphasia and left-sided flaccid paralysis".

Ms. Demings remained in the hospital for 12 days, and was discharged on June 20,2012, At the time of her discharge from the hospital, Ms, Demings' physician noted in his discharge summary that this patient's overall medical condition had deteriorated as a result of her stroke she suffered at Garrison Nursing home and Rehabilitation Center, to the point that Ms. Demings was made a do-not-resuscitate status such that if she experienced a cardiovascular or respiratory failure, she would not be intubated or placed on a ventilator or breathing machine. Report of Keith E. Miller, M.D. Page L2

A "Medication Error Report" made by the nursing staff of Garrison Nursing Home and Rehabilitation Center on June 8, 2012, documented that from the time Ms. Demings was first admitted to this facility on May 25,2012 until the time of her stroke and transfer on June 8, 2012, Ms, Demings was not given her blood{hinning medication, Xarelto as ordered by her physician, This medication had been ordered to be given in a dose o'f 20 milligrams (mgs) at bedtime daily.

This same report stated that "res. (resident) arrived after 5:00 pm on a Friday. This medication (Xarelto) was ordered along (with) all other meds from nursing home pharmacy - nurse transcribing orders had to have all meds written on pharmacy order sheets and faxed in to pharmacy by 6 pm so they could be delivered that night".

The Medication Error Report went on to document that a nurse at this nursing home "failed to transcribe this med (medication) to MAR (Medication Administration Record)'..."an oversight". A question on this same form asked "Could the error have endangered the life or welfare of the patient?" The responsible nurse completing the form answered the question with "Makes her a higher risk for stroke in view of her diag (diagnosis) of atrial fibrillation."

On a subsequent hospitalization on August 5, 2012, in his pre-operative history and physical, one of Ms. Demings' physicians documented what had happened to her during her stay at Garrison Nursing Home and Rehabilitation Center from May 25,2012 through June 8,2012. This physician stated that prior to her first admission to this nursing home, Ms. Demings "was found in atrial fibrillation. She was started (on) Xarelto. Apparently... did not follow-through in the nursing home, and she had...sttokes, disabling, with severe She was rendered substantially disabled."

-.

This physician also documented in his discharge summary of this August 5, 2012 hospital stay, the importance of a patient such as Ms. Demings who suffered with atrial fibrillation, to always remain on a blood-thinning medication such as Xarelto. He stated that "she is to continue with Xarelto...lnstructions were given to the family to make sure that this medication is never stopped."

The statf of Garrison Nursing Home and Rehabilitation Center in Garrison, Texas failed to appreciate that Ms. Legatha Demings was at the highest risk for the development of future strokes due to her past medical history which included hypertension, atrial fibrillation, a previous TlA, and a previous stroke.

The nursing staff of Garrison Nursing Home and Rehabilitation Center obviously needed better training in safe and systematic methods to properly transfer medication orders to their MAR. Ms. Demings arrived at this nursing home in Report of Keith E. MÍller, M.D. Page L3 the late evening on a Friday. The Medication Error Report indicated that the staff of this nursing home was under a short deadline to get Ms. Demings' medication orders to the pharmacy in order to obtain her medications by that evening otherwise they would not receive her medications until at least the following day or perhaps even longer since the following day,fell on a weekend. lt is certain that the nurse transcribing these pharmacy orders felt pressured to get this process done quickly. Unfortunately there was no procedure in place at the time of this incident to ensure that medication orders would always be accurately and precisely transcribed by the nursing staff of this facility, even under stressful situations .

After it was recognized by this nursing home staff that Ms. Demings had failed to properly receive her medications, the nursing staff of this facility recognized the need to improve their procedures for medication ordering from the pharmacy. ln lhe Medication Error Report, the nursing staff responded to a question which asked, 'What precautions can you take to prevent a similar error?" The nurse completing this report answered by stating "always have two nurses check orders on new admissions to make sure (orders are) transcribed correctly".

The specific steps of an appropriate procedure for Ms, Demings would have been tailored to her and would have been determined by an extensive assessment by the nursing staff. These measures would have included such things as having in place an appropriate plan to ensure this resident's medication çrdérs were properly transcribed to her MAR, ensure that her medications were properly ordered and received from the pharmacy, and comparing her physi' cian's orders with her MAR to ensure her original medication orders were always being properly carried out.

As a direct cause, this facility and its staff failed to comply with those standards set forth in paragraph numbãrs: 1,2,3,4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,18, 19, and 20. lt is my opinion, based upon my experience, knowledge, qualifications and review of these records that these standards were not followed and the result was that Ms. Legatha Demings was harmed and injured. The failure to comply with these standards caused, within a reasonable degree of medical and nursing, probability and certainty, Ms. Demings to sutfer a stroke, extensive hospitalization, rehabilitation, and related complications, which compromised her overall health and well-being, and resulted in an overall worsening of her condition, unnecessary and preventable pain, suffering, mental anguish, and loss of dignity. These injuries and illnesses could have, within a reásonable degree of medical and nursing, probability and certainty, been prevented or detected/addressed earlier if these standards had been followed.

Report of Keith E. Miller, M.D Page L4

To meet the standards, Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, and its statf were required to do among other things the following when caring for Ms. Legatha Demings:

A. Recognize and act on the fact that Ms. Legatha Demings was at high risk for illnesses due to a stroke and its related complications, by preparing and following a Care Plan based on an accurate assessment;

B. Specifically implement an etfective and accurate Care Plan by ensuring:

1. That the Care Plan which included the method for safely and accurately administering Ms. Demings' medications was implemented and used at alltimes;

2. That Ms. Demings had sufficient and knowledgeable personnel for p roperly ad min isterin g her. med ications safely;

C. Ensure that a safe and appropriate system was in place to make sure that Ms. Demings' physician orders for medications were properly and accurately transcribed and transmitted to the pharmacy;

D. Put in place a method to recheck Ms. Demings' physician mediation orders from time to time to ensure she was receiving all her necessary, prescribed medications; and

E. lnform and Educate Ms. Demings'family and/or caretakers to the risk of suffering illnesses including strokes if she did not properly receive her medications.

SU-U!.MARY

I have been advised that "Neg/þence" means:

Negllgence, when used with respect to the conduct of a medical facility means failure fo use ordinary care, that is, failing to do that which a medical facility of ordinary prudence would have done under the 'same or similar circumstances or doing that which a medical facility of ordinary prudence would not have done under the same or similar circumstances.

Report of Keith E. Miller, M.D Page 15

I have been advised "proximate cause" means:

That cause which, in a natural and continuous seguence, produces an event, and without cause such event would not have occurred. ln order to be a proximate cause, the act or omission complained of must be such that a health care facility, using ordinary care, would have foreseen that the event or some similar event míght reasonably result there from. There may be more than one proximate cause of an event.

More likely than not, this failure on the part of Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, to practice in an acceptable manner directly resulted in Ms. Legatha Demings' illnesses due to a stroke and its complications, as well as overall worsening of her condition, unnecessary and preventable pain, suffering, extensive hospitalization, mental anguish, and loss of dignity. As more specifically set forth above, the actions and inactions of this facility caused the conditions and complications described above.

ln summary, Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, did not meet the standard of care in their treatment of Ms. Legatha Demings. lt is my opinion, based on my medical education, experience, and training and based upon a reasonable degree of medical and nursing, probability ãnd certainty, that these negligent acts and omissions as stated above proximately caused Ms, Demings' illnesses due to a stroke, and their complications, along with overall worsening of condition, as well as caused her unnecessary and preventable pain, extensive hospitalization, suffering, mental anguish, and loss of dignity. lt is my opinion that Garrison Nursing Home and Rehabilitation Center in Garrison, Texas, knew or should have known that their failure to meet the standards of care would put Ms. Demings at extreme risk of harm and knew or should have known that this failure to meet these standards would likely cause complications or illnesses to Ms, Demings. Nevertheless, Garrison Nursing Home and Rehabilitation Center still failed to follow the above standards. Had the standards of care been followed by Garrison Nursing Home and Rehabilitation Center, more likely than not and based upon a reasonable degree of medical and nursing, probability and certainty, Ms. Demings would not have suffered the illnesses due to a stroke, along with their complications, as well as overall worsening of her condition, unnecessary and preventable pain, sutfering, extensive hospitalization, mental anguish, and loss of dignity.

Report of Keith E. Miller, M.D, Page 16

Center, Texas 75935

Report of Keïth E. Miller, M.D. PageLT

CURRICULUM VITAE

KEITH E. MILLER, M.D.

620 Tenaha Street

Center, Texas 75935 (e36) 5e8-2716

KEITH E. MILLER, M.D.

. EDUCATION -

Chief Resident, 7/87 to 6/88 University of Arkansas Medical Sciences Campus Area Health Education Center, South Arkansas El Dorado, Arkansas

Family Practice Residency, T lS6 to 6/88 University of Arkansas Medical Sciences Campus Area Health Education Center, South Arkansas El Dorado, Arkansas

Family Practice lnternship ,7185 to 6/86 University Hospital Little Rock, Arkansas

Doctor of Medicine Degree, 8/81 to 5/85 University of Arkansas College of Medicine Little Rock, Arkansas

Attended, 8/80 to 5/81 University of Arkansas at Little Rock, School of Law Little Rock, Arkansas

Bachelor of Arts, 8/76 to 5/79 German and Chemistry Baylor of University Waco, Texas

Attended, 8175 to 5176 Biology and Chemistry East Texas Baptist College Marshall, Texas

Shelbyville High School, Bl71to 5i75 Shelbyville, Texas

KEITH E. MILLER, M.D.

-PRACT¡CE ACTIVITIES-

Full Time Family Medicine Practice, July 19BB to Present

Commissioner, 9/03 to 9/07 Texas State Board of Medical Examiners / Texas Medical Board State Medical Licensing Board of Texas

Physician Consultant for Physician Peer Review, 8/90 to 9/03 Texas State Board of Medical Examiners State Medical Licensing Board of Texas

Member, Texas Statewide Medical Advisory Committee, 8/95 to Present Blue Cross/Blue Shield of Texas Performs Physician Peer Review for All Blue CrossiBlue Shield Patients in Texas

President, 1990 to Present Shelby County Medical Society

Advisory Committee Member and Clinical Faculty, 8/90 to Present School of Licensed Vocational Nursing Panola College Center, Texas

Member, Board of Directors, and Medical Director, 8/90 to Present Shelby County Child Advocacy Center Center, Texas

2014 to Present Family Medicine Service Privileges Memorial Hospital San Augustine San Augustine, Texas

2014 to Present Family Medicine Service Privileges Nacogdoches Medical Center Nacogdoches, Texas

Former Physician Reviewer, Texas Medical Foundation, B/90 to 8/03 Pedorms Physician Peer Review/Quality Assurance for All Medicare and Champus Patients in Texas

a

KEITH E. MILLER, M.D.

-PRACTTCE ACTTVTTTES (CONTINUED)-

Former Clinical Faculty, Preceptor, B/90 to 8/03 University of Texas Health Sciences Center Family Practice Residency Program Tyler, Texas

Former Director of Emergency Services, 8/90 to 8/11 Shelby Regional Medical Center Center, Texas

Former Chief of Staff Shelby Regional Medical Center Center, Texas

. July 1988 to 2013 Full Time Active Family Practice Privileges Shelby Regional Medical Center Center, Texas

September 2010 to Present Medical Director Legacy Hospice of Center Center, Texas

March 2011 lo Present Assistant Medical Director The Hospice of East Texas Tyler, Texas

July 1988 to Present Full Time Active Family Practice Privileges Holiday Nursing Home Center, Texas

July 1988 to Present Full Time Active Family Practice Privileges Pine Grove Nursing Home Center, Texas

KEITH E. MILLER, II'I.D.

-PRACTTCE ACTIV¡T¡ES (CONT¡NUED)-

July 1988 to Present Full Time Active Family Practice Privileges Green Acres Nursing Home Center, Texas

July 1988 to Present Full Time Active Family Practice Privileges Twin Lakes Nursing Home San Augustine, Texas

July 1988 to Present Full Time Active Family Practice Privileges Colonial Pines Nursing Home San Augustine, Texas

July 1988 to Present Full Time Active Family Practice Privileges Trinity Nursing and Rehabilitation Center San Augustine, Texas

July 1988 to Present Full Time Active Family Practice Privileges El Camino House Nursing Home San Augustine, Texas

December 2013 to Present Full Time Active Family Practice Privileges Lakeside Village Assisted Living Center, Texas

March 2012 to Present Medical Director Bethany Home Health Care AgencY Carthage, Texas

January 2014 to MaY 2015 Medical Director, Jennings Place Day Care for Mentally Challenged Adults Center, Texas

KEITH E. MILLER, M.D.

- BOARD CERTIFICATIONS .

American Board of Family Medicine, lD 53861

Certification Date July 8, 1988

Re-Certification Date July 14, 1995

Re-Certification Date July 1 2, 2AA2

Re-Certification Date July 15, 2010

. PROFESSIONAL CERTIFICATIONS - Hospice Medical Director Certified (HMDC) Hospice Medical Director Certification Board July 8, 2014 to Present

Certified Medical Review Otficer Medical Review Officer Certification Council United States Department of Transportation United States Department of Health and Human Services Certified February 21, 2006 Re-certified March 24, 2012

Certified Medical Examiner Federal Motor Carrier Safety Administration United States Department of Transportation United States Department of Health and Human Services Certified February 1 1, 2414

Fellow (AAFP), 1990 to Present American Academy of Family Physicians

American Heart Association CPR lnstructor Advanced Cardiac Life Support Instructor Pediatric Advanced Life Support Provider

KEITH E. MILLER, M.D,

. PROFESSIONAL AFF¡LIAT¡ONS .

American Med ical Association

Southern Medical Association

American Academy of Family Physicians

Texas Medical Association

Shelby County Medical SocietY

. VOLUNTEER ACTIVITIES -

Texas State Legislature Physician of the Day, 1989 to Present

Coordinator, Free Physicals Programs, 1988 to Present Department of Athletics Center lndependent School District, Center, Texas

Team Physician, 1988 to Present Department of Athletics Center lndependent School District

Vice-President, Board of Trustees, '1990 to 1999 Center lndependent School District, Center, Texas

Preceptor, 1990 to Present Texas Statewide Medical Student Preceptorship Program

Member, Development Council Baylor University

Former Member, Committee on Rural Health Concerns Texas Medical Association

Former Member, Committee on Rural Health Texas Academy of Family Physicians

KE¡TH E. MILLER, M.D.

.LICENSURE.

State of Texas (H-2155), 8/87 to Present

Formerly Licensed in Arkansas and Louisiana

- AWARDS .

Texas Academy of Physician Assistants Supervising Physician of the Year - 2004

American Medical Association Physician's Recognition Award

American Academy of Family Physicians Award for Clinical lnstruction of Medical Students

Center lndependent School District Community Service Award for Contributions to Student Academics and Athletics

Anderson County Educational Cooperative Service Award for Organizing Programs for Special Services Students

Texas State Legislature Award of Appreciation for Serving as Physician to Legislators While in Session

- PUBLICATIONS.

"Use of Digoxin in the Family Practice Setting"

Journal of the Arkansas Medical Society February 1988

KEITH E. IIJIILLER, M.D.

- ARTICLES -

"More Doctors in Texas After Malpractice Caps"

New York Times October 5,2007 Story of Texas Medical Board Responding to lncreased Licensing Demands During My Tenure as Chairman of the Licensing Committee

"Dangerous Doctors"

Reader's Dþesf June 2004 Background Story of Texas Medical Board Prior to My Appointment as a Commissioner

"Dangerous Doctors - Follow-Up"

Reader's Digest March 2005 Follow-up Story of Texas Medical Board After My Appointment as a Commissioner lncluding Motion Made by Myself for the Largest Fine Levied Against a Doctor by any State in History

"No Medicinal Jet Fuel"

Iexas Medicine August 2009 Story of My Filing of Complaint Against a Physician for Non-Therapeutic Prescribing

- PERSONAL .

Married to Linda Gee Miller since 1975

lnterests Are Health-Care Reform and Finance lssues, in America and Abroad

Speaks Fluent German and Passable Spanish

I nstrument-Rated Private Aircraft Pilot

Umpire, High School Baseball

Appendix C

Van Ness v. ETMC First Physicians,46l S,W.3d 140 (2015) 2015 WL 1870051, 58 Tex. Sup. Ct. J. 746

provides adequate information to inform the 46r S.W.3d t4o defendant of the specific conduct the plaintiff Supreme Court of Texas. has called into question, provides a basis for the trial court to conclude that the claims have Melissa Van Ness, Individually and as Next merit, and does not contain a material Friend, an Heir at Law, and a Suryiving Parent of defrciency. Tex. Civ. Prac, & Rem. Code Ann. Nicholas Van Ness, Ronald Van Ness, Individually $$ 7a.3s1(l), (rX6).

and as Next Friend, an Heil at Law, and a Surviving Parent of Nicholas Van Ness, and Estate of Nicholas Van Ness, Petitioners, 2 Cases that cite this headnote v.

ETMC First Physicians & Kristin Ault, D.O., Respondents l2l Appeal and Error No. r4-o353 | Opinion delivered:April24, zor5 q.'*Rulings on adrnissibility of evidence in general

Synopsis A trial court's ruling on the sufficiency of an Bacl<ground: Parents of minor child who died of expeft's report in a health care liability case is pertussis (whooping cough) brought a health care liability reviewed for abuse of discretion. Tex. Civ. Prac. action against physician and physician's employer. The & Rem. Code Ann. $$ 74.351(l), (rX6). 2nd Judicial District Cour1, Cherokee County, denied physician and employer's motion to dismiss based on parents' alleged failure to cornply with requirements for Cases that cite this headnote an expeft report. Physician and employer appealed. The Tyler Court of Appeals, 2014 WL 1308624, reversed, rendered, and remanded, Parents petitioned for review.

f3l Appeal and Error ,;'-Cases Triable in Appellate Court [Holding:l The Suprerne Court held that the trial court Appeal and Error acted within its discretion in determining that expert's q"*SuffTciency of Evidence in Support report was a good-faith effort to comply with the statutory requirernents for expert reports in health care liability When reviewing for abuse of discretion, cases. appellate coufts defer to the trial court's factual determinations if they are supported by evidence but review its legal determinations de novo.

Petition for review granted; judgrnent of Couft of Appeals reversed and case remanded.

1 Cases that cite this headnote

West Headnotes (6)

l4l Appeal and Error ç*Abuse of discretion lll Health ù'-"Affidavits of merit or meritorious defense; A trial court abuses its discretion if it rules expert affidavits without reference to guiding rules or principles.

A report is a good-faith effort to comply with the statutory requirements for expeft reports in 1 Cases that cite this headnote health care liability cases, so as to survive a challenge to the sufficiency of the report, if it _* _ 1.'irp'.1{,1¡,¡;f{py.l O 2015 fhomson Reuters. No claim to original U.S. Government Works. 1

Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (2015) 2015 WL 187005'1 , 58 Tex. Sup. Ct. J. 746

Heidi O. Vicknair, Jason Charles Webster, Houston, Tina Brumbelow, Tyler, Vincent L. Marable III, Paul Webb, lst Health P,C., Wharton, for Petitioners Estate of Nicholas Van n^Affidavits of merit or meritorious defense; Ness, Melissa Van Ness, Ronald Van Ness, individually expert affìdavits and as next friend, heirs at law, and surviving parents of Nicholas Van Ness.

For an expert's repofi in a health care liability case to be sufficient, the expert must explain, Russell G. Thornton, Thiebaud Remington Thornton based on facts set out in the report, how and why Bailey LLP, Dallas, for Respondents Kristin Ault, D,O., the breach caused the injury; a bare opinion that ETMC First Physicians, the breach caused the injuLy will not suffice. Tex, Civ. Prac. & Rem. Code Ann, $$ 74.351(l), Opinion (Ð(6).

PER CURIAM

2 Cases that cite this headnote **1 This case, which is subject to the Texas Medical Liability Act (TMLA), TEX. CIV. PRAC, & REM, CODE ch. 74, involves the adequacy of an expert report, The issue is whether the trial court abused its discretion I6l Health by denying the defendants' motion to disrniss in light of 'f*Affidavits of merit or meritorious defense; conflicting statements in the plaintiffs' expeft report, expert affidavits some of which the defendants alleged, and the court of appeals held, failed to link the expert's conclusions to the Trial court acted within its discretion in underlying facts, determining that expert's report was not conclusory but, instead, was a good-faith effort Nicholas Van Ness died from pertussis (whooping cough) to comply with the statutory requirements for when he was two months old. His parents, Melissa and expert reports in health care liability cases, such Ronald Van Ness, sued Kristin Ault, D,O,, and her that parents' action against physician and employer, ETMC First Physicians, alleging that Dr. physician's employer after minor child died of Ault's negligence caused Nicholas's death and that pertussis (whooping cough) survived a motion ETMC was vicariously liable for her negligence. The Van to dismiss for failure to comply with the Nesses timely served Dr. Ault and ETMC with an experl requirements, even though the report contained report by Alvin Jaffee, M.D., then served an amended conflicting statements regarding antibiotics and repoft after the trial court sustained the defendants' causation; the reporl also set out that child's objections to the original. The defendants again moved to illness was treatable when physician saw him dismiss the suit, contending that Dr, Jaffee's opinions as and that starting antibiotics at that time and to causation were conclusory because the amended report continuing them as indicated by diagnostic (the report) failed to link his opinions to the underlying testing probably would have prevented child's facts, The trial court denied the motion, On interlocutory death. Tex, Civ, Prac. & Rem, Code Ann. $$ appeal, seeTEX. CIV. PRAC. &. REM. CODE $ 74,351(l), GX6). 51,01a(a)(10), the court of appeals reversed and ordered the suit dismissed. ETMC First Physiciqns v. Van Ness, 461 S.W,3d 152 (Tex.App.-Tyler 2014). We reverse the I Cases that cite this headnote judgment ofthe court ofappeals.

ttlA plaintiff asserting a health care liability claim must serve each defendant with an expeft repoft that includes "a fair summary of the expert's opinions ... regarding *I4I ON PETITION FOR REVIEW FROM THE applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to COURT OF APPEALS FOR THE TWELFTH meet the standards, and the causal relationship between DISTRICT OF TEXAS that failure and the injury, harm, or damage claitned."

Attorneys and Law Firms TEX, CrV. PRAC. & REM. CODE $ 74.351GX6). A challenge to the sufficiency of a report must be sustained

ti',r¡¡1,i!.,,t.,:;f{*rt' @2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Van Ness v. ETMC First Physicians,46l S.W.3d 140 (2015) 2015 WL '1870051 , 58 ïex. Sup. Ct. J. 746

if "the report does not represent an objective good faith The defendants objected to Dr. Jaffee's report on the effoñ to cornply with the fstatutory requirements]." 1d. $ ground that it failed to explain how Dr. Ault's alleged 74.351(l). A repoft is a good faith effort if it provides negligence caused Nicholas's death, specifÏcally adequate infonnation to "inform the defendant of the contending that Dr. Jaffee's rnedical conclusion was not specific conduct the plaintiff has called into question, .., linked to the facts of the case and was conclusory. The providefs] a basis for the trial court to conclude that the defendants moved for dismissal of the suit. The trial court clairns have merit,"Bowie Mem'l Hosp. v. Wright, 79 denied the motion. The couft of appeals reversed and S.W.3d 48, 52 (Tex.2002) (per curiam), and "does not rendered judgment dismissing the Van Nesses' suit with corrtain * 142 a material deficiency,"Samlowski v. Iïooten, prejudice, agreeing with the defendants that Dr. Jaffee's 332 S,W.3d 404,410 (Tex.2011), report was deficient as to the causation element. 461 S.W.3d at 143 l2l l3l l4l ltlA trial court's ruling on the sufficiency of an expert's report is reviewed for abuse of discretion. IolDr. Jaffee's nine-page repoft generally discusses Rosentond v. Al-Lahiq, 33 1 S.W.3d 764, 766 (Tex.201 1); pertussis, including its diagnosis and treatment. His reporl Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 also contains separate sections addressing the applicable S.W.3d 873,877 (Tex.2001). Under that standard, standard ofcare, breach ofthe standard, and causation. In appellate coults defer to the trial court's factual the standard ofcare section, he opined, in part, that detenninations if they are supported by evidence, but review its legal determinations de novo. See Stockton v. [t]he applicable standard of care as to Kristin Ault, DO Offenbach,336 S.W.3d 610, 615 (Tex.2011). A trial court is upon evaluation of a one month old child who abuses its discretion if it rules without reference to pl'esents with symptoms such as a history of fever, guiding rules or principles. Samlowski, 332 S,W.3d at cough and nasal congestion, compounded by sick 410. An expert must explain, based on facts set out in the contacts at home, is to perform laboratory tests, repoft, how and why the breach caused the injury, See administer antibiotics prophylactically while the tests Jelinekv, Casas,328 S,W,3d 526,53940 (Tex,20l0). A are pending and/or to admit the infant to a medical bare expert opinion that the breach caused the injury will facility..., not suffice. Id

**2 Dr. Jaffee set out the following facts in his report as those on which he based his opinions, Nicholas was born .., [H]ad Dr. Ault, performed any of these tests, it would have shown Bordetella pertussis at a treatable orr November 13, 2009. He was seen by Dr. Ault on stage and but for the failure to treat Nicholas Van *143 Novernber 19 and November 30 for regular checkups, and Ness as outlined above he would have had a 51% or Dr. Ault noted no concerns at either visit. However, the more chance of survival.

records from his four-week checkup on December 11 reflected that Nicholas had a fever with a temperature of In the breach section, Dr. Jaffee states again that Dr. Ault 100.2 degrees, was coughing and suffering from nasal breached the standard of care in several ways on both congestion, and was exposed to "sick contacts at home."

December 11 and December 15, including failing to have According to an affidavit submitted by Nicholas's mother, various laboratory diagnostic tests performed on Nicholas she reported to Dr. Ault on December 11 that Nicholas and failing to administer antibiotics prophylactically had been coughing to the point that he could not breathe while the tests were perforrned. Finally, in the causation and was exhibiting facial discoloration. Nothing indicated section of his report, Dr. Jaffee repeats his opinion that that Dr. Ault performed any laboratory or diagnostic tests Dr, Ault should have taken specifìed actions including on Nicholas.

running diagnostic tests on Nicholas and administering antibiotics prophylactically. He also states, "It is within a The Van Nesses returned to see Dr. Ault on December 15 reasonable degree of medical cerlainty and/or with 51% and explained that Nicholas's symptoms had worsened.

certainty that had Dr. Ault appropriately evaluated and Dr. Ault physically examined Nicholas, but again did not diagnosed him, Nicholas Van Ness would have received perform or order any tests. On December 20, the Van the appropriate dosage and treatment of antibiotics in a Nesses took Nicholas to East Texas Medical Center timely manner, and he would not have expired on January Hospital in Jacksonville, where he was treated for acute 20,2010."

pneurnonia, wheezing, and tachycardia. The following day he was transfened to the Children's Medical Center As supporl for its conclusion that the report was deficient Hospitalin Dallas, where he died on January 20,2010.

as to causation, the appeals court focused on several statements from the report, including the following:

''1ir¡:¡..i¡;,i'.r¡þjsy"t. @2015 Thomson Rer"rters. No claim io original U.S. Government Works 3

Van Ness v. ETMC First Physicians,46l S.W.3d 140 (2015) 2015 WL 1870051 , 58 Tex, Sup. Ct. J, 746

. "prevention of pertussis via vaccination is of would not have prevented Nicholas's death; thus, the primary impoftance because treatment is of little report did not *144 demonstrate a causal relationship benefit to the person infected"; between Dr. Ault's alleged negligence and Nicholas's death.461 S.W,3d 152.

**3 . ((s¡v¿ccinated or incompletely vaccinated infants younger than 12 months of age have the In its analysis however, the appeals court did not fully highest risk for severe and life-threatening credit all of Dr. Jaffee's factual statements and opinions. complications and death"; In particular, the court did not credit statements and opinions from Dr. Jaffee's report to the effect that (1) a . "A reasonable guideline is to treat .,. infants aged stage existed at which pertussis could be treated with less than [one] year within six weeks of cough antibiotics; (2) if Dr, Ault had given Nicholas antibiotics onset"; and prophylactically and ordered testing, the tests would have shown his pertussis was at a treatable stage; and (3)

. "antibiotics may 'shoften the duration of Nicholas would have had a 5|Yo chance of recovery if Dr. infectiousness and are thus recotntnended.' " Ault had started Nicholas on prophylactic antibiotics and continued antibiotics as indicated by results ofthe tests.

461 S.W.3d 152.

Dr. Jaffee's statetnent about antibiotics having little effect In reaching its conclusion as to Dr, Jaffee's repoft, the on pertussis other than reducing the potential for couft of appeals noted that Nicholas began receiving spreading the disease is in tension with his statements that treatment on December 20 in the Jacksonville hospital. It Nicholas was treatable with antibiotics and would have fufiher identified December 20 as being approximately had a 51o/o chance of survival if Dr, Ault had adrninistered three weeks after Nicholas's visit with Dr, Ault on them. The first-referenced statement, by itself, indicates November 30, at which time he was not yet feverish, that whatever Dr. Ault did on December l1 or December coughing, or presenting other symptoms, Given the 15 would have had little effect on the course of Nicholas's temporal sequence of events, the appeals court reasoned illness and would not have prevented his death.

that treatment beginning on December 20 "was well Accordingly, as the couft of appeals explained, that within the reasonable guideline of treating the disease statement standing alone would not demonstrate that within six weeks of cough onset" specified by Dr. Jaffee under the facts as set out in the report Dr. Ault's alleged and negligence was causally related to Nicholas's death, and his causation opinion would be conclusory.

Dr. Jaffee's conclusion that Nicholas would not have died had Dr. Ault began treatment on December ll, **4 2010, or December 15, 2010, does not follow from the However, Dr. Jaffee's report also set out that Nicholas's illness was treatable when Dr. Ault saw him in aforementioned discussion of the facts in his repoft.

December, and starting antibiotics at that time and Rather, because treatment is of little benefit to the continuing them as indicated by diagnostic testing person affected, the facts lead to the conclusion that probably would have prevented Nicholas's death. Given had Dr. Ault provided antibiotics to Nicholas on either these parts of the repotl, the trial court could have of those dates, at most Nicholas's symptoms may have determined that Dr. Jaffee's opinions were linked to the lessened and his ability to spread the disease to others underlying facts and explained why and how Dr. Ault's may have diminished. The facts discussed in the repoÍ timely treatment of Nicholas with antibiotics would have do not show that treatment would have altered the prevented his death, course of the disease, but lead to the conclusion that Nicholas was unfortunately one of those infants who Under the circumstances, the trial couft had did not survive despite timely treatment. discretion-indeed it was incumbent on the trial court-to review the report, sort out its contents, resolve any 461 S.W.3d at 144 inconsistencies in it, and decide whether the report demonstrated a good faith effort to show that the Van The couft of appeals focused on Dr. Jaffee's statements Nesses' claims had merit, Considering both the repoft's that treatment with antibiotics is of little benefìt and only explication of how Dr. Ault's alleged negligence was would have lessened Nicholas's symptoms and reduced causally related to Nicholas's death and the conflicting the contagiousness of his pertussis. 461 S.W.3d 152. statements as to that causal relationship, we conclude that Based on those statements, the court concluded that the the trial court did not abuse its discretion by determining repoft showed that treatment earlier than December 20 that the report was not conclusory, but was a good faith

',ïi.',.Íi;,rrrl{Êxf O 2015 Thomson Reuters. No claim to original U.S. Government Works 4

Van Ness v. ETMC First Physicians, 461 S.W.3d 140 (2015) 2015 Wt 1870051 , 58 Tex. Sup. Ct, J, 746

efforl to cornply with the TMLA's requirements. Thus the trial court did not abuse its discretion by denying Dr. Ault's motion to dismiss, see Samlowski, 332 S,W.3d at 410, and the court of appeals erred by reversing the trial All Citations court's judgment.

461 S.W,3d 140,2015 WL 1870051, 58 Tex. Sup. Ct. J 746 We grant the petition for review, 'Without hearing oral argument, s¿eTEX, R. APP. P. 59.1, we reverse the court of appeals' judgrnent and remand the case to the trial couft for further proceedings. End of Document O 2015 Thomson Reuters, No claim to original U.S. Government Works.

'#*Ett,r;vfrlnxt. O 2015 Thomson Reuters. No claim to original U.S. Government Works 5 pendix D

CIV¡L PRACTIgE & REMEÞIES CODE CHAPTER 74. MEDICI\L LIABILITY 5574.r54-74.2s1

*

/B S.W.3d SS2, 556 /cì that is related t0 an emergency caused in SUBCHAPTER F. STATUTE OF ne pnrases ,stan. LIMITATIONS , -\i'., in part by the negligence of the defendant.

I

t are not Syn0nv. tt'io,ro rio, g74 ì54: Acts 2003, 78th Leg' ch 204, 0l, cff sept' l, t "sl0 GPRC ç74.25I. STATUTE OF llpractice actions. LIMITATIONS ON HEALTH l expert's medical ',iirflli?rtru;tffias co'n' "uedicar Negrigcnce under the ,vredicar CARE LIABILITY CLAIMS le applicable (a)

Notwithstanding any other law and subject to stan: 74'155'74'200 reserued for expansion ; not constituts Secilons Subsection (b), no health care liability claim may be

5Z+.SSr1¿10¡. ¡n.

¿ E. REs lPsA LoQUITUR commenced unless the action is filed within two years "u""toPTER from the occurrence of the breach 0r tort 0r from the rndard of proof ¡s. ¿pRC 574,201. APPLIGATION OF cases. In the ¿¡.

RES IPSA LOQUITUR date the medical or health care treatment that is the The common lawdoctrine of res ipsa loquitur shall subject of the claim or the hospitalization for which the any expert rep¡¡¡ nnlv apply t0 health care liability claims against health claim is made is completed; provided that, minors unr or health s¿¡s .oé provi¿ers or physicians in those cases t0 which it der the age of 12 years shall have until their 14th birthmd wanton could nr.n applied by the appellate courts of this state as day in which to file, or have filed on their behalf, the ne dixit because f'ur ofAugust29,1977' claim.r Except as herein provided this section applies to n expert report is Hjstory of CPRC .s74 20l:

Acls 2003, 78th Leg, ch. 204, $ I0 0I' eff Sept l' all persons regardless of minority or other legal disabil-

Source: TRCS art 4590i' N7 0l 2003.

ity.

See also |'Connot's Tems C1A, "Res ipsa loquitur," ch. 20-4, $9 3'

TRUCTIONS P 66S (b) A claimant must bring a health care liability MERGENCY ANNorarroNs claim not later than l0 years after the date of the act or E omission that gives rise to the claim. This subsection is '' Kinguood Pines Hosp, LLC a, Gomez, 362 S.W.3d Lt involves a claim intended as a statute of repose so that all claims must 740,751 (Tex.App.-Houston Il4th Dist'] 2011, no iion of emergency be brought within l0 years 0r they are time barred.

pet,). "Res ipsa loquitur is not a cause of action sepadepartment or ob- i' l. Ilditor's notei A minor is not lcgally capable 0fbringing suit until she rate from negligence; rather, it is a rule of evidence by reaches the agc of 18. Weinet u. l/as.son, 900 S.W2d 316, 318 (Tex,1995).

rmediately follow. l Thus,aminorhasuntilher20thbirthdaytofilesrrit./¿/. at32l;seeolsoAdams which the jury may infer negligence. It applies to situaratient in a hospi- n, GottØal(t,179 S.W.3d l0l, 103 ('Iex.App.-San Antonio 2005, pet, denied)

tions in which two factors are present: (l) the charac- (applying open-courts provisi0n 0fTexas Constitut¡on to $74,251).

shall instruct the ter of the accident is such that it would not ordinarily Historyof CPRC $74,251: Acts 2003, 78th Leg., ch. 204, $10.01, eff. Sept. l, her relevant mat- 2003. Source: TRCS art.4590i, $10,01.

occur in the absence of negligence, and (2) the instru-

See also }'Connor's Texas C0A,"LimiTations," ch. 20-4, $5, p. 637.

mentality causing the injury is shown to have been unrg care did or did der the management and control ofthe defendant, Furor was able or un- ,.

ther, the doctrine applies only when the nature of the Generally ry including the ';. alleged malpractice and injuries are plainly within the Methodíst Heulthcare Sys, a. Ranhin, 307 S.W.3d .ditions, allergies, common knowledge of laypersons, requiring no expert 283, 290 (Tex.20l0). "To hold that a statute of repose testimony. .., The three recognized areas in which res ipsa loquitur applies to health care claims are negli-

[ike $74.251(b)] must yield to IP's] inability to disristing physician' cover her injury would treat a stâtute of repose like a gence in the use ovider-patient re' of mechanical instruments, operating statute of limitations, and would effectively repeal this 0n the wrong body part, and leaving surgical instruand all other statutes 0f repose. At 292: Section menß 0r sponges inside the body," Jee also Haddocþ a, rg the emergencY; 74.25 I (b)'s grant of absolute protection against indefi-

ArnspÍger, ?93 S.Wzd 948, 951 (Tex.1g90); Broxternite potential liability does not violate the Texas Constiman u. Corson, 309 S.W3d 154, 158-59 (Tex.App,- tution.",See also Walters a, Cleaeland Reg'l Med, Ctr,, ng the delivery of Dallas 2010, pet. denied).

307 S.W3d 292,298 (Tex,20l0).

Traut a. Beaty, zs S,W.Bd 661, 662 (Tex.App.-

(a) do not aPPIY ^ rexarkana 2002, no pet.). " lRles ipsa loquitur cannot Shah u. Moss,67 S.W.3d 836, 841 (Tex.200l). TRCS ue aPplied art. 4590i, $10.01, now CPRC $74.251(a), "measures in every case in which an object is left in a the limitations period for medical negligence claims Patie.nt's boOy."

is HetO: Although p used the theory of res i stabilized and tÞsa loquiturjexpert from one of three dates: (l) the occurrence of the nt as a noneflof' testimony was needed to eitablish breach or tort, (2) the last date ofthe relevant course of a^causal ,onn.ótion between D's negligence and P's Þai¡.

treatment, or (3) the last date ofthe relevant hospitalal medical efler' ization. A plaintiff may not choose the most favorable Sections 74.202-f4.250 date that falls within $10.01's three categories. Rather, reserued for exponsion

O'CoNNoR's TExa,s cPRC 265

CIVIL PRACTICE & REMEDIES CODE CHAPTER 74. MEDICAL LIABILITY ss74.3o3 - 74.351

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time at which damages subject to such limits are ity claim is asserted, The date for serving the reÞ'rt awarded by finaljudgment or settlement. may be extended by written agreement of the affei¡g¿ (k)

(c) Subsection (a) does not apply to the amount of parties. Each defendant physician or health care served Þr0.

damages awarded on a health care liability claim for vider whose conduct is implicated^in a report musifile (1) the expenses of necessary medical, hospital, and custo- and serve any objection to.the sufficie¡6y of the repo¡¡ (2) dial care received before judgment or required in the not later than the later of the 2 I st day after the date pr0cee( the future for treatment of the injury. report is serued or the 2 I st day after the date the defen_ (3)

(d) The liability of any insurer under the common dant's answer is filed, failing which all objections ¿¡q c0urse law theory of recovery commonly known in Texas as the waived. (t) "Stowers Doctrine" shall not exceed the liability of the (b) If, as to a defendant physician or health ç¿¡g equacy insured. provider, an expert report has not been served within after ht (e) In any action on a health care liability claim the period specified by Subsection (a), the court, 0n the jective I

that is tried by ajury in any court in this state, the fol- motion of the affected physician or health care pr'. an exp(

lowing shall be included in the court's written instruc- vider, shall, subject to Subsection (c), enter an oider (ml tions to the jurors: that: (r)

(l) "Do not consider, discuss, nor speculate (l)

awards to the affected physician or health care , (l)

whether or not liability, if any, on the part of any party is provider reasonable attorney's fees and costs of court physici in.

or is not subject to any limit under applicable law." curred by the physician or health care provider; and fected t (2) "A finding of negligence may not be based this sec (2) dismisses the claim with respect to the physi_ solely on evidence of a bad result to the claimant in tion wh cian 0r health care provider, with prejudice to the refil.

question, but a bad result may be considered by you, 0r agrel ing of the claim.

along with other evidence, in determining the issue of (2)

(c)

If an expert report has not been serued within (3)

negligence, You are the sole judges of the weight, if .

the period specified by Subsection (a) because ele.

any, to be given to this kind of evidence." (4)

ments of the report are found deficient, the court may History of CPRC $74.303: Acts 2003, 78rh Leg., ch. 204, g 10.01, eff. Sepr. l, provide 2003, Source: 1'llCS art. 4590i, gl 1.04. grant one 30-day extension to the claimant in order to asserte See also 0'Co¿¡¡¿or's Texqs COA, "Stoøers Doctrine," ch. l3-8, p. 367; cure the deficiency. If the claimant does not receive no-

"Medical Negligence Under. the Merlical Liability Act," ch. 20-A, p. S99. cross-dr tice of the court's ruling granting the extension until (5)

ANNOTATIONS after the 120-day deadline has passed, then the 30-day (A)

Phíllips u, Bromlett,2BB S,W.3d 8Z6, 880 n.5 (Tex. extension shall run from the date the plaintiff first rem 0ny r( 2009). "The IMLIIA], ITRCSI arr. 4590i ..., was re- ceived the notice.

cepted r

peâIed.... The cap in [TRCS art. 4590i,] gll.02 was, (d) to (h) [Reserved.] testify r however, carried forward in ICPRC] $?4.303(a).... The (i)Notwithstanding any other provision of this . (B) Stowers exception in S11.02(c) was not carried for- section, a claimant may satisff any requirement of this m0ny r ward, but rather replaced by 974.303(d) which ex- section for serving an expert report by serving reports parted ;

pressly provides that the insurer can now use the cap to of separate experts regarding different physicians or pert qui limit its liabilily.. .." health care providers or regarding different issues aris' tion 74.

Sections 74.304-74.350 reserued for expansion ing from the conduct of a physician or health care pro' (c)

vider, such as issues ofliability and causation. Nothing mony al SUBqHAPTER H. PRoqEÞURAL in this section shatl be construed to mean that a single harm, t pRovtstoNs from th expert must address all liability and causation issues CPRC 574.35f . EXPERT REPORT with respect to all physicians or health care províders liabitity (a) In a health care liability claim, a claimant shall, or with respect to both liability and causation issues for render ,

not later than the 120th day after the date each defen- a physician or health care provider. Texas R

dant's original answer is filed, serve 0n that party or the (i)

Nothing in this section shall be construed t0 (D)

rnony al party's attorney one 0r more expert reports, with a cur- require the serving of an expert report regardin9 riculum vitae of each expert listed in the report for each harm, ( issue other than an issue relating to liability or physician or health care provider against whom a liabil- from thr tion.

27O O'CoNNoR's TExas CpRC

CIVIL PRAcT¡qE & REMEDIES CoÞE CHAPTER 74. MEDICAL LIABf LITY 574.35 t

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, fk) Subject to Subsection (t), an expert report tist or physician who is otherwise qualified to render this section: opinions on such causal relationship under the Texas r care ^.*ii under Rules of Evidence; or '"' rtl ir not admissible in evidence by any party;

t must (E) with respect to a person giving opinion testistralt not be used in a deposition, trial, or other iZi mony about the causal relationship between the injury und re date n,oùáding; harm, or damages claimed and the alleged departure the l- 13; shall not.be referred to by any party during the from the applicable standard of care for a podiatrist, a actl0n 10r any purpOse'

rourse of the podiatrist or physician who is otherwise qualified to lD shall grant a motion challenging the ad-

A court render opinions on such causal relationship under the an expert report only if it appears to the court, :alth ,ouàóy of Texas Rules of Evidence.

care ,tiert''euting, that the report does not represent an ob- (6) "Expert report" means a written report by an ed within Lctive good faith effort to comply with the definition of rrt, on the expert that provides a fair summary of the expert's in SubsecLion (r)(6)'

än expert report opinions as of the date of the report regarding applicare pro.

(m) to (q) [Reserved.] cable standards of care, the manner in which the care an order, (Ð In this section: rendered by the physician or health care provider failed (1)"Affected partíes" means the claimant and the to meet the standards, and the causal relationship belalth care physician or health care provider who are directly af- tween that failure and the injury harm, or damages f court in:

fected by an act or agreement required or permitted by claimed.

r; and this section and does not include other parties to an ac- (s) Until a claimant has served the expert report he physi.

tion who are not directly affected by that particular act and curriculum vitae as required by Subsection (a), all the refil. or agreement. discovery in a health care liability claim is stayed ex-

(2) "Claim" rneans a health care liability claim. cept for the acquisition by the claimant of information, :d within (3) [Reserued.] including medical or hospital records or other docuruse ele. (4) "Defendant" means a physician or health care ments 0r tangible things, related to the patient's health ourt may provider against whom a health care liability claim is care through:

order to asserted, The term includes a third-party defendant, (l) written discovery as defined in Rule 192.7, :eive no. cross-defendant, or counterdefendant. Texas Rules of Civil Procedure; ion until (5) "Expert" means: (2) rlepositions on written questions under Rule e 30-day 200, Texas Rules of Civil Procedure; and '

(A) wiih respect to a person giving opinion testifirst remony regarding whether a physician departed from ac-

(3) discovery from nonparties under Rule 205, cepted standards of medical care, an expert qualified to Texas Rules of Civil Procedure. testi$' under the requirements of Section 74.401; (t) If an expert report is used by the claimant in (B) with respect to a person giving opinion testi- the course of the action for any purpose other than to rt of this mony regarding whether a health care provider meet the service requirement ofSubsection (a), the rede -

reports parted from accepted strictions imposed by Subsection (k) on use of the ex, standards of health care, an expert qualified pert report by any party are waived.

:ians ot to testify under the requirements of Sectes aris' tion 74.402; (u) Notwithstanding any other provision of this are pr0' (C) with respect to a person giving opinion section, after a claim is filed all claimants, collectively, Vothing _ mony about testi- may take not more than two depositions before the exthe causal relationship between the injury I single, pert report is served as required by Subsection (a), damages claimed and the alleged depariure 1.1'*:.0, History of CPRC S74.351: Acts 2003, 78th Leg,, ch. 204, $10.01, efi Sept. l, issues applicable standard of care in any heaith care 2003. Amended byActs 2005,79th Leg., ch.635, gl, eff. Sept. 1,2005; Acts 2013, llT,lhttabili $ claim, 83rd Leg., ch.870, $2, eff. Sept. l,2013. Source: TRCS art.4590i, $13.01.

oviders a physician who is otherwisã qualified to render opinions See also O'Co¡¡¡¡orb Tems C0A,"ExperL report," ch.20,4, $7.2, p. 652.

iues for on such causal relationshipunder the texas Rules of Evidence:

rued t9 with respect to a person giving opinion testi-

.^{D) 574.351 (a)

ng any 'uOny ab0ut the causal retátionship between the injury Zanchi a, Lane,408 S.W3d 373,375 (Tex.2013).

causa'

,,iiiifJ.iii:f';: "Today we determine whether a claimant asserting Ian :li iHå îï : JåïJ i å:i ff il: :: HCLCI complies with tCPRCI $74.351(a)'s mandate to

O'CoNNoR's TEXAs CPRC 2-71

CIVTL PRAGTIGE & REMEDIES CODE CHAPTER 74. MEDICAL LII\BILITY 58 74.402 - 74.405

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sp ecialty may be qualified to testi ry if and the injury harm, or damages claimed if the person from 0ne I but kn owledge of what ls cu stomari ly done is a dentist or physician and is otherwise qualified to pracli cal nef t of d ifferent spe ct alty unde clrcum" render opinions on that causal relationship under the rto imilar to thos e at ssue ln the case Indeed, if Texas Rules of Evidence.

e matter c0mm0n to and equally recognized IS (c) In a suit involving a health care liability claim ny if in all fields of practice, any physician fa- against podiatrist, a person may qualiff as an expert

a

may testify as to the standard 0 witness on the issue of the causal relationship between with the subj ect ts the proffered medi cal expert expertise the alleged departure from accepted standards of care evl dent from the four corners of his report and and the injury harm, or damages claimed if the person )e n vilae." See also Methodíst Hosp, a. Shep- is a podiatrist or physiciaú and is otherwise qualified to , 296 S.W.3d 193, l98 (Tex.App,- render opinions on that causal relationship under the 0ns Dist. ] 2009, no Pet.). Texas Rules of Evidence.

tter I l4th t). Gueffa,252 S.W.3d 511, 531-32 (Tex. (d) A pretrial objection to the qualifications of a rbj uston [4th Dist.] 2008, pet, denied). Corpo- witness under this section must be made not later than lm attOrney's expert "report explaining the'contrac- the later of the 2lst day after the date the objecting and corporate inter-relationships of the various party receives a copy of the witness's curriculum vitae h ich Dsl 'along with their duties to each other Iis admis- or the 21st day after the date of the witness's deposieen

because CPRCI 5$74.401(d) and 74.402(d) are tion. If circumstances arise after the date on which the and s for for use at the expert report phase of [an objection must be made that could not have been reasonably anticipated by a party before that date and that loes Group u, Vicento,l64 S.W.3d 724,731 (Tex.App'- the party believes in good faith provide a basis for an s00n [14th Dist.] 2005, pet. denied). "IS]ection objection to a witness's qualifications, and if an objec' rut (a)'s two definitions of 'practicing health care' tion was not made previously, this subsection does not tness 'are not exclus ive. H I Reading 574.402 subsections (a) prevent the party from making an objection as s00n as f an (b)(1) together, subsection (a) expands upon the practicable under the circumstances. The court shall definition of'practicing health care' to include quali- conduct a hearing to determine whether the witness is rg t0 teachers and consulting health care providers who qualified as s00n as practicable after the filing of an oble not otherwise be qualified under subsection jection and, if possible, before trial. If the objecting sectioll (b)(l) because they are not practicing health care and party is unable to object in time for the hearing to be instead teach or consult." See also Foster a, Zaaala, conducted before the trial, the hearing shall be con- .?14 ali S,W3d 106, 113 (Tex.App.-Eastland 2006, pet. de- ducted outside the presence of the jury. This subsection ried) does not prevent a party from examining 0r cross'exa

ff.

,,CPRC s 74 403. a U l\ L F CAT o N s o F amining a witness at trial about the witness's qualifica-

i8, p.

EX P E R T W T N ES s o N c l\ U SA T o N tions. N H E A LT H c A R E L A B L T Y c L A M Historyof CPRC $74.403:Acts 2003, 78th Leg., ch 204, $10.01, eff. Sept. I,

¡i I (a) Except as provided by Subsections (b) and (c), 2003.

See also 0'Co¡¡¡¡orb Texas C0A,"F'xperlTestimony," ch.20"4, $8, p.661'

suit involving a health care liabi lity claim against a ANNOTAT¡ONS an or health care provider, a person may qualify an expert witness on the issue of the causal relation TTHR, L,P, a. Coffman,338 S.W.3d 103, 111 (Tex, between the alle ge d departure from accep ted stan 'ery App.-Fort Worth 2011, no pet.), "IP] argues that an ify of care and the lnJ ury harm 0r damage claimed expert report Ion a claim for the wrongful release of rq if the pers0n IS a p hysician and IS oth e rwlse qu ali medical information prohibited by Occ. Code $ 159.002 l render 0p lnl0n s on that causal relationship u n would require the expert to render a legal opinion and, Texas Rules of Evidence er because the statute requires a physician to render the In a suit involving a health care liability claim expert opinion, it cannot be created. At I I4: Because ß a denti st, d pers0n may qual ifv as an expert wit- the standard of care regarding confidentiality is a stant .ue 0n the issue dard that applies to all health care providers and beof the causal relati onsh lp betwee n alleged departure from accepted standards of care cause health care providers are expected to know the

o,coNNoR's TExas cPRC 243