Gerald Harrington, M.D. v. Sandra Schroeder and Duane J. Ramos, Individually and as All Heirs to the Estate of Sylvia Ramos

Opinion

ACCEPTED 04-15-00136-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 5/11/2015 4:50:47 PM KEITH HOTTLE CLERK

NO. 04-15-00136-CV

IN THE FOURTH COURT OF APPEALS FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 5/11/2015 4:50:47 PM KEITH E. HOTTLE GERALD HARRINGTON, M.D. Clerk Appellant,

v.

SANDRA SCHROEDER AND DUANE J. RAMOS, INDIVIDUALLY AND AS ALL HEIRS OF THE ESTATE OF SYLVIA RAMOS, DECEASED Appellees.

APPELLEES’ BRIEF

LAW OFFICES OF PAT MALONEY, P.C., BYRON B. MILLER, State Bar No. 24074716 byron@maloneylawgroup.com MICHAEL MALONEY, State Bar No. 12883300 mikem@maloneylawgroup.com ERICA MALONEY, State Bar No. 24085698 ericam@maloneylawgroup.com 322 W. Woodlawn Ave., Suite 1 San Antonio, Texas 78212 Telephone: (210) 228-0400 Facsimile: (210) 758-5908 Attorneys for Appellees

i IDENTITY OF PARTIES AND COUNSEL

In accordance with TEX. R. APP. P. 38.2(a)(1)(A), Appellees correct Appellant’s

list of parties and counsel as follows-

IDENTITY OF APPELLEES:

The plaintiffs in the trial Court and the appellees in this action are: Sandra Schroeder and Duane J. Ramos, Individually and as all Heirs to the Estate of Sylvia Ramos, Deceased.

IDENTITY OF TRIAL AND APPELLATE COUNSEL FOR APPELLEES:

Byron B. Miller Michael Maloney Erica Maloney Law Offices of Pat Maloney, P.C. 322 W. Woodlawn Ave., Suite 1 San Antonio, Texas 78212 Telephone: 210-228-0400 Facsimile: 210-758-5908

i TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................................................i

INDEX OF AUTHORITIES...................................................................................... v

STATEMENT REGARDING ORAL ARGUMENT ............................................... 2

ISSUES PRESENTED............................................................................................... 2

Whether the Appellant waived his Ch. 74 objections because he failed to serve his Ch. 74 Objections within 21 days of receipt of the Appellee's Ch. 74 Expert Report.

Whether the Appellant waived his objections concerning Dr. Lipson's qualifications to opine as to the standard of care because he did not file and serve such an objection and only raised it on appeal.

Whether the trial Court abused its discretion by holding that that Dr. Lipson was qualified to testify as to causation and the standard of care.

Whether the trial Court abused its discretion by holding that Appellees’ section 74.351 expert report set forth at least one viable liability theory against Appellant

STATEMENT OF FACTS ........................................................................................ 3

SUMMARY OF THE ARGUMENT ........................................................................ 5

ARGUMENT ............................................................................................................. 7

I. Standard of Review.......................................................................................... 7

II. The Appellant waived his Ch. 74 Objections because Appellant failed to serve such objections within the statutorily required 21 days of receipt of the Appellee's Ch. 74 Expert Report……………… ............................................. 7

A. Appellant has waived all of his objections as a matter of law………………7

B. Appellant has waived his objections concerning Dr. Lipson's qualifications to opine as to the standard of care. ………………………………………...10

ii III. Loren Lipson, M.D. is qualified to testify as to the standard of care………10

A. Standards for determining qualifications to provide opinion on the standard of care……………………..…………………………………….10

B. Current board certifications are not required when an expert has substantial training and experience in an area of medical practice relevant to the claim…………………………………………………………………….….11

C. Appellant’s argument that Dr. Lipson is not actively practicing in geriatric medicine is false…........................................................................................15

IV. The trial Court did not abuse its discretion in finding Loren Lipson, M.D. qualified to testify as to causation………………………………………….17

A. Standards to determine whether an expert is qualified to opine as to causation……………………………………………………………………18

B. Dr. Lipson is qualified to opine as to causation……………………………19 C. Appellant’s argument that Dr. Lipson is not qualified to opine on causation because he is not licensed to practice medicine in the State of Texas is incorrect…………………………………………………………………….21

V. Appellees are entitled to proceed with their healthcare liability claim because their expert report sets forth at least one viable theory of liability against Appellant ........................................................................................... 27

A. Appellees have asserted a healthcare liability claim against Appellant…....24

B. The Expert Report requirement ..................................................................... 25

C. Appellant’s “but for” argument ignores the evidence provided in Loren Lipson, M.D.’s report……………………………………….……………...27

D. Loren Lipson, M.D.’s report is not conclusory as to causation……………30

1. Failure to give appropriate input into Sylvia Ramos’ care plan…………..31

iii 2. Failure to timely and properly assess Sylvia Ramos and accurately document her health conditions...............................................................................36

3. Failure to discharge Sylvia Ramos to a level of care that could meet her health needs............................................................................................39

VI. Request for damages for frivolous Appeal…………………………………41

VII. In the event that the Court determines the report is deficient, Appellee should be granted an opportunity to cure the deficiency............................... 42

VIII. Conclusion ..................................................................................................... 43

PRAYER .................................................................................................................. 44

TEX. R. APP. P. 9.4(i)(3) CERTIFICATE OF COMPLIANCE ............................ 45

CERTIFICATE OF SERVICE ................................................................................ 46

APPENDIX .............................................................................................................. 47

iv INDEX OF AUTHORITIES

Cases American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) .....................................................................................................7, 25, 26

Stephanie M. Philipp, P.A. v. McCreedy, 298 s.w.3d. 682, 686 (Tex. App.—San Antonio 2009, no pet.)…………………………………………………………………7, 26

Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) ........................................ 7

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) .................... 7

Bakhtari v. Estate of Dumas, 317 S.W.3d 486 (Tex. App. – Dallas 2010, opinion)……………………………………………………………………………10

Williams v. Mora, 264 S.W.3d 890 (Tex. App. – Waco 2008, affirmed)…...……10

Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996)……………………………...11, 18

Pediatrix Med. Servs. Inc. v. De La O, 368 S.W.3d 34, 40 (Tex.App.—El Paso 2012, no pet.)……………………………………………………………………..18

Methodist Healthcare System of San Antonio, Ltd., L.L.P. v. Belden, No. 04-14- 00215-CV at *9, (Tex. App.—San Antonio Oct. 29, 2014, mem. op.)…….…18, 30

Livingston v. Montgomery, 279 S.W.3d 868, 877 (Tex. App.-- Dallas 2009, no pet.)..........................................................................................................................19

Comstock v. Clark, 09-07-300-CV, 2007 WL3101992, at *4 (Tex. App.— Beaumont Oct. 25, 2007, pet. Denied)(mem. op.)………………………………...19

Sloman-Moll v. Chavez, No. 04-06-00589, 2007 WL595134, at *4 (Tex.App.—San Antonio Feb. 28, 2007, pet. denied)(mem. op.)…………………………………...19

Lee v. Mitchell, 23 S.W.3d 209, 212 (Tex. App.-- Dallas 2000, pet. denied)…….22

Sweet v. Weise, 2001 Tex. App. LEXIS 5976, 2001 WL 988114 (Tex. App. Dallas Aug. 30, 2001)……………………………………………………………………22 v Tenet Hosps. Ltd. v. Boada, 304 S.W.3d 528, 2009 Tex. App. LEXIS 8143 (Tex. App. El Paso 2009)…………………………….………………………………….23

Springer v. Johnson, 280 S.W.3d 322 (Tex.App.– Amarillo 2008, no pet.)……...22

Kelly Ryan Cook, P.A. v. Spears, 275 S.W.3d 577 (Tex.App.—Dallas 2008, opinion issued)…………………………………………………………………….23

IHS Acquisition No. 140, Inc. v. Travis, 2008 WL 1822780 at *9 (Tex. App.– Corpus Christ 2008, pet. denied)(not designated for publication)………………..26

Tovar v. Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P., 185 S.W.3d 65, 68 (Tex.App.-San Antonio 2005, pet. denied)……………………………………….26

Kayani v. Stevens, 2013 WL 174553 (Tex. App. – Beaumont 2013, no pet.)(not designated for publication) ...................................................................................... 26

Baylor Med. Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552 (Tex.App.Dallas 2009, no pet.) ........................................................................................................... 26

VHS San Antonio Partners LLC v. Garcia, 2009 WL 3223178 (Tex.App.-San Antonio Oct. 7, 2009, pet. denied)(not designated for publication) ........................ 26

Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013) ..............................passim

Apodaca v. Russo, 228 S.W.3d 252 (Tex.App.-Austin 2007, no pet.) .................... 29

Cooper v. Arizpe, No. 04-07-00734-CV, 2008 WL 94090, at *3 (Tex.App.—San Antonio Apr. 9, 2008, pet. denied) (mem. op.)…………………………………...30

Murphy v. Mendoza, 234 S.W.3d 23, 28 (Tex.App.—El Paso 2007, no pet.)……30

Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010)……………………………...30

Owen v. Jim Alle Imps., Inc., 380 S.W.3d 276 (Tex. App. – Dallas 2012, no pet.) 42

Leland v. Brandal, 217 S.W.3d 60 (Tex. App. – San Antonio 2006), aff’d 257 S.W.3d 204 (Tex. 2008) ........................................................................................... 43

Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) ……………………………...43 vi Silsbee Oaks Health Care, L.L.P. v. Chumley, 2010 WL 5550671 (Tex. App. – Beaumont 2010, pet. denied)(not designated for publication) ..........................28, 29

vii NO. 04-15-00136-CV

IN THE FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS

GERALD HARRINGTON, M.D. Appellant,

v.

SANDRA SCHROEDER AND DUANE J. RAMOS, INDIVIDUALLY AND AS ALL HEIRS OF THE ESTATE OF SYLVIA RAMOS, DECEASED Appellees.

APPELLEES’ BRIEF

TO THE HONORABLE COURT OF APPEALS:

Appellees, Sandra Schroeder and Duane J. Ramos, Individually and as All

Heirs to the Estate of Sylvia Ramos, Deceased, (“Appellees”) submit this Brief of

Appellees in Response to the Brief of Appellant Gerald Harrington, M.D.

(“Appellant”). Matters in the Clerk’s Record are referred to as “CR ___”; and the

Reporter’s Record will be referred to as “RR Vol. __, p.___”. Matters in the

Appendix are referred to as “APP ___”.

1 STATEMENT REGARDING ORAL ARGUMENT

Appellees respectfully suggest that oral argument in this case is not

necessary because the dispositive issue or issues have been authoritatively decided,

the facts and legal arguments are adequately presented in the briefs and record, and

the appeal is frivolous. However, in the event the Court determines that oral

argument is appropriate, Appellees request that they be permitted to argue.

ISSUES PRESENTED

1. Whether the Appellant waived his Ch. 74 objections because he failed to

serve any Ch. 74 Objections until February 24, 2015, 112 days after such

objections were due.

2. Whether the Appellant waived his objections concerning Loren Lipson,

M.D.'s qualifications to opine as to the standard of care because he failed to

file and serve such objections.

3. Whether the trial court abused its discretion by holding that Loren Lipson,

M.D. is qualified to testify as to the standard of care.

4. Whether the trial court abused its discretion by holding that Loren Lipson,

M.D. is qualified to testify as to causation.

5. Whether the trial court abused its discretion by holding that Appellees’

Section 74.351 expert report sets forth at least one viable liability theory

against Appellant.

2 STATEMENT OF FACTS

This healthcare liability action arises out of the tragic injuries to and the

death of Sylvia Ramos. Sylvia Ramos was a resident of Trisun Care Center

Windcrest nursing home from September 25, 2006 until she sustained a fatal head

injury from an altercation with a fellow resident on July 15 2012. (CR 13; APP 1).

While a resident at the nursing home, the Appellant, Dr. Gerald Harrington, acted

as Sylvia Ramos’ primary care physician. Over the course of time Appellant cared

for Ms. Ramos, she endured numerous encounters of resident on resident abuse,

multiple fractures, approximately 30 falls, instances of institutional scabies,

repeated UTI’s, signs of sexual assault, and prolonged neglect at the hands of

Appellant and the facility’s nursing staff. The final incident of abuse ultimately

resulted in her death on August 1, 2012. (CR 13-15; APP 1).

Appellees filed this action against Appellant on June 27, 2014. (CR 11;

APP 1). PM Management – Windcrest NC, LLC d/b/a Trisun Care Center

Windcrest, Dr. Rudolfo Zarate, Zarate Medical Group, P.A., and Setters Medical

Group, P.A. are also defendants in the action. (APP 2). On October 14, 2014, 109

days after filing the action against Appellant, Appellees timely served Appellant

with their 120-day expert report prepared by Loren Lipson, M.D. (Dr. Lipson)

pursuant to section 74.351 of the Texas Civil Practice and Remedies Code. (CR

32-33; RR Vol. 3 Ex. 1, p. 1-12; APP 3). Dr. Lipson’s curriculum vita was also

3 provided. (CR-32-33; APP 4). An additional Ch. 74 Report discussing the liability

of the nursing home that had been previously served on the nursing home was re-

served on Dr. Harrington and incorporated by reference as Exhibit A to the Ch. 74

Report concerning Dr. Harrington. (RR Vol. 3, Ex. 1, Ex. A; APP 5). This earlier

report contained an extensive discussion of the facts relevant to Dr. Harrington’s

care.

In his report addressing Dr. Harrington’s care, Dr. Lipson’s report set forth

his qualifications (RR Vol. 3 Ex. 1, p. 1-2; APP 3), identified the materials he

reviewed (RR Vol. 3 Ex. 1, p. 2; APP 3), provided a factual history of Sylvia

Ramos’ conditions and discussed the care she received by the Appellant at the

nursing home. (RR Vol. 3 Ex. 1, p. 2-5; APP 3), and included a detailed section

addressing various liability theories against the Appellant. (RR Vol. 3 Ex. 1, p. 5-

12; APP 3).

In the liability section of his report, Dr. Lipson provided a comprehensive

description of the standard of care, breaches of the standard of care, and how those

breaches of the standard of care caused Sylvia Ramos’s injuries, including a pelvic

fracture, fifth metacarpal fracture of the left hand, mental anguish, large occipital

hematoma, intracranial hemorrhage, and death. (RR Vol. 3 Ex. 1, p. 8-12; APP 3).

Appellant filed objections to Dr. Lipson’s report on October 31, 2014 (CR

26-31; APP 6). However, Appellees were not properly served with Appellant’s

4 Objections to Plaintiffs’ Expert Report and, in fact, did not actually receive a copy

of the objections until February 24, 2015, at a discovery hearing. (RR Vol. 2, p. 5-

21; APP 7). Following a hearing on Appellees’ objections to Plaintiffs’ Expert

Report on March 2, 2015, the trial court overruled the Appellant’s objections and

denied the Appellant’s motion to dismiss on March 9, 2015 (CR 41-42; APP 8) and

this appeal ensued.

SUMMARY OF THE ARGUMENT

Appellant failed to serve his Ch. 74 Objections on Appellees’ counsel until

February 24, 2015, 112 days following his deadline to serve such objections.

Accordingly, Appellant has waived his Ch. 74 Objections as a matter of law.

Additionally, Appellant has raised new objections in his Appellant’s Brief,

specifically concerning the qualifications of Loren Lipson, M.D. to opine as to the

standard of care, which were not included in those objections previously filed by

the Appellant. Thus, Appellant has waived his right to raise any objections

concerning Dr. Loren Lipson’s qualifications to opine as to the standard of care.

Even if the Court of Appeals were to find that Appellant’s objections were

timely served and not waived, Dr. Lipson’s Ch. 74 Expert Report and curriculum

vita satisfy the requirements of Ch. 74. Dr. Lipson’s Ch. 74 Expert Report and

extensive curriculum vita detail his substantial experience in the field of geriatric

care, including his many accolades, as well as his work as a physician, his teaching 5 positions, and consultant positions with U.S. state and federal agencies on geriatric

care. Dr. Lipson is well-qualified to provide opinions as to the standard of care

concerning Dr. Harrington, a geriatric primary care physician, as well as opinions

regarding causal related fall and abuse injuries.

Appellees have pleaded and supported with an expert report at least “one

viable liability theory” against Appellant. In that regard, Dr. Lipson’s expert

report, when viewed in its entirety, provides a “fair summary” of the applicable

standard of care with regard to prevention of fall injuries and resident on resident

attacks, explains how Appellant failed to meet that standard, and establishes the

causal relationship between the failures by the Appellant and the fractures, mental

anguish, numerous fall injuries, repeated resident on resident assaults, large

occipital hematoma, and fatal intracranial hemorrhage suffered by Sylvia Ramos.

Because Dr. Lipson’s report satisfies the requirements of a report under

Section 74.351, Appellees are entitled to proceed.

6 ARGUMENT

I. Standard of Review

This Court reviews the trial court’s ruling on Appellant’s Section 74.351

Motion to Dismiss for an abuse of discretion. American Transitional Care Centers

of Texas, Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Stephanie M. Philipp,

P.A. v. McCreedy, 298 S.W.3d. 682, 686 (Tex. App.—San Antonio 2009, no pet.).

A trial court abuses its discretion if it acts arbitrarily or unreasonably or without

reference to any guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79

S.W.3d 48, 52 (Tex. 2002). In reviewing the ruling on a motion to dismiss, the

Court may not substitute its judgment for that of the trial court. Id. Mere

disagreement with the trial court's decision is insufficient to constitute an abuse of

discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–242

(Tex. 1985).

II. Appellant waived his Ch. 74 Objections because Appellant failed to serve his objections on Appellees’ counsel within the statutorily required 21 days of receipt of Appellees' Ch. 74 Expert Report.

A. Appellant has waived all of his objections as a matter of law

Appellant failed to serve objections on counsel for Appellees’ counsel within 21

days after Appellees’ expert report was served. When this case was initially filed against

Appellant, the law firm representing Apellees was the Marynell Maloney Law Firm,

P.L.L.C. However on September 17, 2014, the Marynell Maloney Law Firm, P.L.L.C.,

7 withdrew its representations of Appellees and the Law Offices of Pat Maloney, P.C. was

substituted as counsel. (APP 10). On October 14, 2014, Appellees timely served

Appellant with their Chapter 74 expert report and curriculum vita of Loren Lipson, M.D.

(CR 32-33; RR Vol. 3 Ex. 1, p. 1-12; APP 3). Appellant was required to file and serve his

objections on Appellees by Nov. 4, 2014. On October 31, 2014 Appellant timely filed

objections to Dr. Lipson’s expert report (CR 26-31). In his “Certificate of Service,”

Appellant’s counsel provided the correct email and contact information for Appellees’

counsel. (CR 30; APP 7; RR Vol. 2, p.7-8; APP 6-7). Appellant’s counsel correctly listed

the three attorneys of record from Law Offices of Pat Maloney, P.C. and provided their

correct contact information, including correct email addresses. However, Appellant’s

counsel failed to serve these objections on Appellees’ counsel. As shown by Appellant’s

“Notification of Service”, Appellant’s counsel served his objections electronically at

dellak@swbell.net, an email that does not belong to any of the attorneys, and

Byron@marynellmaloneylawfirm.com, an email related to the Marynell Maloney Law

Firm, P.L.L.C., which had withdrawn representation more than a month before. (RR Vol.

3, Ex. 3; APP 11). This was done despite the fact that the correct firm, attorneys’ names,

and attorney contact information was on file at the time of service. (RR Vol. 2, p. 8; APP

7). Consequently, Appellees were unaware and not provided with a copy of Appellant’s

objections until February 24, 2015, at an unrelated discovery hearing, approximately 112

days following the deadline to serve objections. (RR Vol. 2, p. 6; APP 7).

On March 2, 2015, the date of the hearing on Appellant’s objections, Appellant’s

counsel repeatedly argued to the trial court that simply filing objections is sufficient, that

8 service is complete upon providing an email address to an electronic service, and that late

service is sufficient. (RR Vol. 2, p.6, 12, and 17; APP 7).These arguments are

misrepresentations of the relevant statutes and case law.

According to Texas Civil Practice & Remedies Code Section 74.351(A), “Each

defendant physician or health care provider whose conduct is implicated in a report must

file and serve any objection to the sufficiency of the report not later than the later of the

21st day after the date the report is served or the 21st day after the date the defendant’s

answer is filed, failing which all objections are waived.” (APP 9). , TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(A). Additionally, under Rule 21(a) of the Texas Rules of Civil

Procedure, which is relevant here, provides as follows:

Every notice required by these rules, and every pleading, plea, motion, or other form of request required to be served under Rule 21…may be served by delivering a copy to the party to be served, or the party's duly authorized agent or attorney of record.

(APP 12). Tex. R. Civ. P. R. 21(a).

In the present case, Appellant clearly failed to timely serve Appellees’ counsel

with objections to Dr. Lipson’s Ch. 74 expert report, despite the fact that the correct

information for Appellees’ counsel was on file and known by Appellant’s counsel as

evidenced by the “Notification of Service.” (RR Vol. 3, Ex. 3; APP 11). While appellate

Courts do not allow an exception for mistake, in the present case, there is not even any

excuse for mistake. The Appellate Courts have routinely stated that the plain language of

the Statute means any objections served after the 21-day deadline are deemed waived.

Bakhtari v. Estate of Dumas, 317 S.W. 3d 486, 493 (Tex. App.—Dallas 2010, opinion);

9 Williams v. Mora, 264 S.W.3d 890 (Tex. App.—Waco 2008, affirmed). Consequently,

because Appellant failed to meet the deadline for serving objections to Appellees’ Ch. 74

expert report, Appellant has waived his objections as a matter of law.

B. Appellant has waived his objections concerning Dr. Lipson's qualifications to opine as to the standard of care.

Objections to Dr. Lipson, M.D.’s qualifications to opine as to the standard of care

were raised for the first time in the Appellant’s brief filed on April 15, 2015. (Appellant’s

Brief p. 9-13). Absolutely no objections to Dr. Lipson, M.D.’s qualifications to opine as

to the standard of care were raised in Appellant’s Objections to Plaintiffs’ Chapter 74

Expert Report filed on Oct. 31, 2014 or at any time prior to the filing of the Appellant

brief. (CR 26-31; APP 6).

Since the Appellant failed to file and serve any objections concerning the

qualifications of Loren Lipson, M.D. to opine as to the standard of care by Nov. 4, 2014,

within the 21 day deadline for filing and serving objections, Appellant has clearly waived

any objections pertaining to Loren Lipson, M.D.’s qualifications to opine as to the

standard of care.

III. Loren Lipson, M.D. is qualified to testify as to the standard of care.

A. Standards for determining qualifications to provide opinion on the standard of care.

As discussed above, Appellant has waived any objections as to Loren

Lipson, M.D.’s qualifications to opine as to the standard of care. However, even if

this Court were to find that such objections were not waived, it is clear from Loren

10 Lipson, M.D.’s expert report and curriculum vita that Dr. Lipson is more than

qualified to opine as to the standard of care in this case.

The Texas Supreme Court has stated that an expert is qualified to testify if

the expert has the knowledge, skill, experience, training or education “regarding

the specific issue before the court which would qualify the expert to give an

opinion on that particular subject.” Broders v. Heise, 924 S.W.2d 148, 153 (Tex.

1996).

In this case, the specific issue before the Court with regard to Dr. Gerald

Harrington was the failure of the treating physician to supervise the medical care of

Sylvia Ramos, including the failure to provide input into the resident’s care plan, to

perform timely and adequate assessments, to properly document Sylvia Ramos’

health problems, and coordinate Sylvia Ramos’ discharge to a facility that could

meet the level of care required. (RR Vol. 3, Ex. 1, p.5-7; APP 3). Thus, to be

qualified to testify regarding the applicable standard of care on this issue, the

expert report would need to show that the expert is qualified to render an opinion

as to the responsibilities of an ordinarily prudent treating physician of a geriatric

patient.

B. Current board certifications are not required when an expert has substantial training and experience in an area of medical practice relevant to the claim.

11 The Appellant incorrectly contends that Dr. Lipson must have current board

certifications to provide opinions as to the standard of care. (Appellant’s Brief 10-

11). While it is true that Dr. Lipson was not certified at the time the claim arose,

Section 74.401 specifically states as follows:

In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness: (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and (2) is actively practicing medicine in rendering medical care services relevant to the claim.

(APP 17). TEX. CIV. PRAC. & REM. CODE § 74.401.

The Statute clearly states that board certification is merely a consideration. Further,

the Appellant fails to mention the fact that the Statute states that a Court may also

consider “substantial training or experience in an area of medical practice relevant

to the claim”, as an alternative active board certifications.

Dr. Lipson’s expert report and 47-page curriculum vita detail substantial

training and experience in geriatric care and long-term care. In the report, Dr.

Lipson states:

During the course of my career, I have been Board Certified in Internal Medicine, Geriatric Medicine, and Utilization Review and Quality Assurance. I have served as Director of the University of California (‘USC’) Teaching Nursing Home Program and Co-Director of the Los Angeles County USC Medical Center Adult Protection Team-Geriatric Assessment Clinic. I have worked with the Keck School of Medicine at USC for over 29 years, having served as the Chief of the Section of Geriatric Medicine and Associate Professor of 12 Medicine, Gerontology, Clinical Pharmacy, Medical Dentistry and Public Health, and Occupation Science and Occupational Therapy…I have served as a Consultant to the Departments of Administration, Health and Social Services and Law, State of Alaska, in the areas of geriatric medicine and long term care. I also have been the Physician Advisor to USC University Hospital in areas of utilization management and quality assurance.

I have extensive personal experience in primary medical care as well as in subspecialty consultation and long-term care…As a result of my education, training, and experience, I am qualified to render a relevant and reliable expert opinion on the standard of care applicable to the treating physician, Dr. Harrington…Through my extensive personal experience in primary medical care and the various positions I have occupied during the course of my career, I am familiar with the accepted standards of medical care applicable to treating physicians at nursing home facilities.

(RR Vol. 3, Ex. 1, p. 1-2; APP 3).

Within his 47-page curriculum vita Dr. Lipson details more than 45 years of

experience in geriatric and long-term care, with experiences including:

Director of the two USC Teaching-Nursing Home Programs, 1999- 2005 (Hollenbeck Home- Los Angeles; Atherton Baptist Home – Alhambra); Member and Member Board of Director, California Association of Medical Directors, 1992-1999; Consultant – State of Alaska, Department of Administration, Division of Longevity Services Aging Programs and State of Alaska Long Term Care Facilities – the Pioneers’ Homes), 1991-2004; Affiliate Professor, College of Health and Social Welfare and College of Arts and Sciences, University of Alaska, Anchorage. Areas of involvement- Alaska Geriatric education Center, Geriatric Assessment, Pre-med and Medical Education, Long Term Care, 2006-Present; Consultant to the University of Alaska, Sitka, Areas of involvement – Care of Elderly Conference – Director, 1994-20101; Consultant in Long Term Care, Elder Abuse and Geriatric Medicine – State of Alaska, Department of Law, 2000-2003; Consultant in Long Term Care, Geriatric Medicine and Elder Abuse- State of California, Department of Justice, Office of 13 the Attorney General, Bureau of Medical Fraud and Elder Abuse, 2000-Present; Consultant in Long Term Care – State of California, Department of Justice, Office of the Attorney General, Bureau of Medical Fraud and Elder Abuse - Operation Guardians (Nursing home- unannounced inspections), 2000-2009; Consultant in Long Term Care, Geriatric Medicine and Elder Abuse – State of New Mexico, Department of Justice, Office of the Attorney General, Medicaid Fraud and Elder Abuse Unit, 2003- Present; Consultant in Long Term Care, Geriatric Medicine and Elder Abuse, United States of America, Department of Justice, Civil Rights Division and Civil Divisions, 2006- Present; Primary Care Provider for Geriatric Medicine for Long Term Care Patients – Hollenbeck Home, Los Angeles, California, 1998-2004; LAC/USC Medical Center Clinic – Adult Protective Team – Geriatric Medicine – Clinic Co-director, 2000-2004; Member of the America Association of Medical Directors, 2005-2008; USC – Angelus Plaza – Senior Clinic – Founding Director and care provider (1989-1992); Consultant in Geriatric Medicine and Long Term Care- Silverado Senior Living Centers, San Juan Capistrano, 2001-2002; Consultant in Geriatric Program Development and Long Term Care – Keiro Services – the Japanese American Retirement Homes, Los Angeles, 1986-2004; Consultant in Geriatric Program Development and Long Term Care- The Motion Picture and Television Home, Woodlands Hills, CA, 1986-1990.

(RR Vol. 3, Ex. 2 p.16-17; APP 4)

University of Southern California School of Medicine: Associate Professor of Medicine (Division of Geriatric Medicine) 1984-2006, Chief of the Division of Geriatric Medicine 1984-2005; Los Angeles County/ University of Southern California Medical Center, Staff Physician in Medicine (Geriatric Medicine) 1984-2004; University of Southern California University Hospital, Chief of Geriatric Medicine 1991-2005, Attending Staff Physician in Geriatric Medicine for Medical House Staff and students 1991-2005; Development and improvement of Geriatric Medical Curriculum in the Medical School – University of Southern California 1985-2004; Development of Geriatric Medical Core Curriculum for the Medical House Staff- LAC/USC Medical Center, 1985-2004.

14 (RR Vol. 3, Ex. 2 p.5-7; APP 4).

It is baffling that the Appellant failed to mention the “Long Term Care

Experience” clearly laid out in Dr. Lipson’s curriculum vita. (RR Vol. 3, Ex. 2, p.

16-17; APP 4).

C. Appellant’s argument that Dr. Lipson is not actively practicing in geriatric medicine is false.

As mentioned above under Section 74.401 there is a requirement that a

physician be actively practicing medicine or rendering medical care services

relevant to the claim. The Appellant misrepresents to the Court that Dr. Lipson’s

report does not evidence that he is actively practicing medicine in an area relevant

to the claim at the time the claim arose or currently. With regard to “practicing

medicine”, Section 74.401(b) provides as follows:

[F]or the purpose of this section, “practicing medicine” or Medical practice” includes, but is not limited to, training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians.

(APP 17). TEX. CIV. PRAC. & REM. CODE § 74.401(b).

In his report Dr. Lipson specifically states:

I am a physician licensed and currently practicing in the State of California... I am currently Professor Emiritus of Medicine. I also currently serve as Co-Director in Geriatric Education and as Affiliate Professor at the University of Alaska, Anchorage in the College of Health and in the WWAMI Program for Alaskan Medical Students. I am also 15 Adjunct Professor at the School of Community and Global Health, Claremont Graduate University… Additionally, I am a consultant to the Department of Justice, State of California and New Mexico, and U.S. Department of Justice in areas of geriatric care and elder abuse.

(RR Vol. 3, Ex. 1, p. 1; APP 3).

I have extensive personal experience in primary medical care as well as in subspecialty consultation and long-term care. In addition to my academic teaching, research, and administrative responsibilities, I am currently practicing medicine and was doing so at the time the claims described below occurred.

(RR Vol. 3, Ex. 1, p. 2; APP 3).

Moreover, Dr. Lipson’s extensive curriculum vita details his numerous current

practicing positions, such as:

Affiliate Professor, Biomedical WWAMI Program; Affiliate Professor, College of Health University of Alaska Anchorage. Areas of involvement- Alaska Geriatric Education Center, Geriatric Assessment, Pre-med and Medical Education, Long Term Care, 2006-Present.

(RR Vol. 1, Ex.2, p.16; APP 4).

University of Alaska, Anchorage, Faculty Consultant in Geriatrics, Alaska Family Medical Residency, September 2006-Present; U.S. Department of Justice, Civil Division, 2006-Present, Consultant in Long Term Care, Geriatric Care, Elder Abuse; New Mexico Department of Justice office of the Attorney General, Bureau of Medicaid Fraud and Elder Abuse, 2003- Present, Consultant in Long Term Care, Geriatric Care, Elder Abuse. California Department of Justice, Office of Attorney General Bureau of Medical Fraud and Elder Abuse, 2000- Present, Consultant to Operation Guardian and Consultant in Long Term Care, Geriatric Care, Elder Abuse.

(RR Vol. 1, Ex.2, p.6; APP 4).

16 Co-Director in Geriatric Education to Alaskan Medical students in the University of Washington Medical School WW AMI Program, University of Alaska, Anchorage, 2006 – Present; Faculty consultant in Geriatrics to Residents of the Alaska Family Residency Program, 2006-Present; Teaching Responsibilities (School of Community and Global Health), Claremont Graduate University January 2011 – Present. Consultant to Claremont Graduate University faculty and students in areas of gerontology and geriatrics including didactic lectures, presentations for both research and general knowledge…Teaching graduate student in special study classes in geriatric health and provision of health care to seniors.

(RR Vol. 1, Ex.2, p.8; APP 4).

Beyond the fact that Dr. Lipson states three times in his report that he is

actively practicing medicine, his curriculum vita evidences numerous current

positions and titles showing that Dr. Lipson is currently practicing medicine

specifically in the field of geriatrics. Accordingly, it is disingenuous for Appellant

to claim that Dr. Lipson was not practicing medicine at the time the claim arose.

For example, Appellant represents to the Court in his Brief that Dr. Lipson’s

curriculum vita is “devoid of any evidence that [h]e is actively practicing medicine

in rendering medical care services relevant to the claim…” (Appellant’s Brief p.

11). Moreover, he claims: “[Dr. Lipson’s] CV fails to show that [he] is currently on

the faculty actively training residents or students.” A cursory reading of the

curriculum vita lists numerous active teaching positions. Dr. Lipson’s report and

curriculum vita show his substantial training and experience in geriatric medicine,

as well as his current practice in the field. There is no question that Dr. Lipson is

qualified to opine as to the standard of care in this case. 17 IV. The trial court did not abuse its discretion in finding Loren Lipson, M.D. qualified to testify as to causation.

Appellant contends that “nothing in Dr. Lipson’s report or CV affirmatively

shows that [he] is qualified to testify as to causation— the intracranial hemorrhage

and death of Sylvia Ramos was caused by documentation, errors, etc.—other than

a conclusory statement that [he] is ‘competent to testify as an expert on the subject

of medical causation in the case of Sylvia Ramos.’” (Appellant’s Brief 16-17).

However, this contention completely ignores the relevant case law on point and the

qualifications clearly laid out in Dr. Lipson’s report.

A. Standards to determine whether an expert is qualified to opine as to causation.

As discussed above, an expert is qualified to opine if the expert has the

knowledge, skill, experience, training, and education “regarding the specific issue

before the court which would qualify the expert to give an opinion on that

particular subject.” Broders, 924 S.W.2d at 153. A medical expert from one

specialty may be qualified to testify about another specialty if the expert has

practical knowledge about what medical experts in the other specialty traditionally

do under circumstances similar to those at issue in the case. Pediatrix Med. Servs.

Inc. v. De La O, 368 S.W.3d 34, 40 (Tex.App.—El Paso 2012, no pet.) The

expert’s qualifications must be evident from the four corners of the expert report

and curriculum vitae. Id. The Fourth Court of Appeals and numerous other

18 Appellate Courts have recognized that a physician’s expertise may qualify him to

testify about complications that commonly occur within his field of expertise.

Methodist Healthcare System of San Antonio, Ltd., L.L.P. v. Belden, No. 04-14-

00215-CV at *9, (Tex. App.—San Antonio Oct. 29, 2014, mem. op.); Livingston

vb. Montgomery, 279 S.W.3d at 868, 877 (Tex. App.—Dallas 2009, no pet.)

(holding board certified OB/GYN’s expertise in managing labor and delivery

qualified him to opine “on the causal relationship between labor and delivery,

including a newborn’s neurological injuries”); Comstock v. Clark, 09-07-300-CV,

2007 WL3101992, at *4 (Tex. App.—Beaumont Oct. 25, 2007, pet. Denied)(mem.

op.)(holding anesthesiologist qualified “to express general opinion that a

significant deprivation of oxygen causes brain injury”); Sloman-Moll v. Chavez,

No. 04-06-00589, 2007 WL595134, at *4 (Tex.App.—San Antonio Feb. 28, 2007,

pet. denied)(mem. op.)(holding physician trained as surgeon also trained to manage

surgical complications).

B. Dr. Lipson is qualified to opine as to causation.

Dr. Lipson’s curriculum vita and expert report clearly demonstrate that

Loren Lipson, M.D. has the knowledge, skill, experience, training, and education

to opine on the causal relationship between the negligence in this case and Ms.

Ramos’ various injuries and death from a fatal intracranial hemorrhage caused

19 when she was attacked by another resident at the nursing home. Dr. Lipson’s

expert report provides as follows:

I am competent to testify as an expert on the subject of medical causation in the case of Sylvia Ramos. I am specifically familiar with the type of problems experienced by Sylvia Ramos, including but not limited to the following: falls, wandering, resident on resident abuse, signs and symptoms of sexual abuse, neglect, institutional scabies, fractures, head trauma, and intracranial hemorrhage.

(RR Vol. 3, Ex. 1, p. 2; APP 3).

Through my education, training and experience, I am familiar with the type of fatal intracranial hemorrhage Mrs. Ramos suffered on 7-16-12. An intracranial hemorrhage is a hemorrhage that occurs within the skull. Intracranial bleeding occurs when a blood vessel within the skull is ruptured, leaks, or is otherwise damaged. Intracranial bleeding can be caused by falls as a consequence of blunt force trauma to the brain. Signs and symptoms of intracranial bleeding include headache, concussion, loss of consciousness, behavioral changes, seizure, vision problems, numbness, muscle ache, eye discomfort, and stiff neck. Ms. Ramos’ intracranial hemorrhage was consistent with the mechanics of blunt force head trauma that resulted from the assault on her and her subsequent fall.

(RR Vol. 3, Ex. 1, p. 10-11; APP 3).

Additionally, it is evident from the report and Dr. Lipson’s curriculum vita

that he has substantial experience in geriatric care, including attendant problems

with geriatric care, such as neglect, abuse, falls, and fatal head injuries, such as

intracranial hemorrhage, which can result from falls. As articulated above, Dr.

Lipson’s curriculum vita discusses his past board certifications in internal

medicine, quality assurance and utilization review, and geriatric care, as well as

20 numerous teaching positions, fellowships consultant positions, administrative

positions, appointments, editorial and published works, memberships, and long-

term care positions, almost all pertaining to geriatric care in the long-term care

setting. (RR Vol. 3, Ex. 2, p. 1-47; APP 4).

Because Loren Lipson, M.D.’s expert report and curriculum vita evidence

substantial experience and training, specifically with long term geriatric care and

his familiarity with the specific injuries at hand (intracranial hemorrhage and

death), Dr. Lipson is qualified to testify about the complications of long-term

geriatric care, including neurological injuries that result when a fall or abuse

occurs. Thus, it is clear that Dr. Lipson is qualified to render opinions as to

causation in this case.

C. Appellant’s argument that Dr. Lipson is not qualified to opine on causation because he is not licensed to practice medicine in the State of Texas is incorrect.

Furthermore, despite clear case law to the contrary, Appellant argues to the

Court that Loren Lipson, M.D. is not qualified to render medical opinions as to

causation because he is not licensed to practice medicine in the State of Texas.

Appellant argues that Texas Civil Practice & Remedies Code Section

74.001(a)(23) , which defines a “physician” as “an individual licensed to practice

medicine in this state” should apply. TEX. CIV. PRAC. & REM. CODE

§74.001(a)(23). Conversely, the only case law Appellant has cited completely

21 contradicts the proposition that an expert must be licensed within the state of

Texas. Appellant’s argument and the accompanying logic associated with

Appellant’s argument have already been rejected numerous times by Texas

appellate Courts. The case law is quite clear that a physician licensed in a state

outside of Texas may be qualified to render a Ch. 74 Report as to causation.

Chapter 74 clearly articulates who may be qualified to be an expert as to

causation. Section 74.403(a) entitled “Qualifications of Expert Witness on

Causation in Health care Liability Claim,” provides in part:

Except as provided by Subsections (b) and (c), in a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.

(APP 14). TEX. CIV. PRAC. & REM. CODE ANN. § 74.403(a).

Nowhere does the plain language of Section 74.403(a) limit experts to those

who are licensed within the State of Texas. The Appellate Courts have continually

rejected the argument that an expert opining as to causation must be licensed

within the State of Texas. See e.g. Lee v. Mitchell, 23 S.W.3d 209, 212 (Tex. App.-

- Dallas 2000, pet. denied); Sweet v. Weise, 2001 Tex. App. LEXIS 5976, 2001

WL 988114 (Tex. App. Dallas Aug. 30, 2001); Springer v. Johnson, 280 S.W.3d

322 (Tex.App.– Amarillo 2008, no pet.). This issue was most recently addressed

22 by the Court of Appeals in Dallas in 2009, where the Court unequivocally held that

a physician need not be licensed to practice medicine in Texas to be qualified to

provide an expert opinion on causation in an expert report. Tenet Hosps. Ltd. v.

Boada, 304 S.W.3d 528, 2009 Tex. App. LEXIS 8143 (Tex. App. El Paso 2009).

In Tenet the Defendant argued that pursuant to the definition of “physician” used

within Section 74.351(a) of the Texas Civil Practice & Remedies Code the expert

must be licensed in the State of Texas to opine as to the issue of causation. Id. This

argument was very clearly rejected by the Dallas Court of Appeals. Id. The Court

held that for the purposes of who constitutes an expert qualified to opine on

causation means a “physician” licensed to practice in one or more states in the

United States…” Id. at 537; Kelly Ryan Cook, P.A. v. Spears, 275 S.W.3d 577

(Tex.App.—Dallas 2008, opinion issued) (rejecting the argument that an expert

must be licensed in Texas in order to opine as to causation for Chapter 74

purposes).

Because it is clear that a physician licensed to practice outside the State of

Texas may opine as to causation for the purposes of providing a Chapter 74

Report, Appellant’s argument is clearly frivolous and must fail.

23 V. Appellees are entitled to proceed with their healthcare liability claim because their expert report sets forth at least one viable theory of liability against Appellant.

A. Appellees have asserted a healthcare liability claim against Appellant

Appellees brought this wrongful death and survival action against Appellant

as a healthcare liability claim under the provisions of Chapter 74. Chapter 74

defines a health care liability claim as follows:

‘Health care liability claim’ means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.

TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13). (APP 13).

Where, as in the instant case, the plaintiffs are seeking recovery of damages under

both wrongful death and survival theories of liability, all of the plaintiffs are

treated as a single “claimant” asserting a single health care liability claim. Section

74.001(a)(2) specifically provides:

‘Claimant’ means a person, including a decedent's estate, seeking or who has sought recovery of damages in a health care liability claim. All persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant.

TEX. CIV. PRAC. & REM. CODE 74.001(a)(2). (APP 13).

24 B. The Requirements of the Expert Report

At the time this case was filed, Section 74.351(a) of the Texas Civil Practice

& Remedies Code required that a claimant in a health care liability claim serve,

within 120 days of filing an action, “one or more expert reports, with a curriculum

vitae of each expert listed in the report for each physician or health care provider

against whom a liability claim is asserted.” TEX. CIV. PRAC. & REM. CODE §

74.351(a). (APP 9). The Statute defines an expert report as “a written report by an

expert that provides a fair summary of the expert's opinions as of the date of the

report regarding applicable standards of care, the manner in which the care

rendered by the physician or health care provider failed to meet the standards, and

the causal relationship between that failure and the injury, harm, or damages

claimed.” TEX. CIV. PRAC. & REM. CODE §74.351(r)(6). (APP 9).

To comply with the statutory requirements, the report need only provide

enough information to fulfill two purposes: (1) it must inform the defendant of the

specific conduct the plaintiff has called into question; and (2) it must provide a

basis for the trial court to conclude that the claims have merit. Am. Transitional

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The Texas

Supreme Court has explained that a “fair summary” is not “a full statement of the

applicable standard of care and how it was breached.” Id. at 880. In other words,

“there is some level of ambiguity— something less than an absolutely full

25 description—that is subject to the independent analysis of the trial court.” IHS

Acquisition No. 140, Inc. v. Travis, 2008 WL 1822780 at *9 (Tex. App.– Corpus

Christ 2008, pet. denied )(not designated for publication). In regard to causation,

“a fair summary is something less than all the evidence necessary to establish

causation at trial….” Tovar v. Methodist Healthcare Sys. of San Antonio, Ltd.,

L.L.P., 185 S.W.3d 65, 68 (Tex.App.-San Antonio 2005, pet. denied). “‘A plaintiff

need not present evidence in the report as if it were actually litigating the merits.

The report can be informal in that the information in the report does not have to

meet the same requirements as the evidence offered in a summary-judgment

proceeding or at trial.’” Id. at 70 quoting Palacios, 46 S.W.3d at 879. Further,

“the report need not ‘rule out every other possible cause of the injury, harm, or

damages claimed’ or ‘rule out all other possible scenarios.’ Kayani v. Stevens,

2013 WL 174553 at *3 (Tex. App. – Beaumont 2013, no pet.)(not designated for

publication) citing Baylor Med. Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552,

562 (Tex.App.-- Dallas 2009, no pet.); VHS San Antonio Partners LLC v. Garcia,

2009 WL 3223178 (Tex.App.-- San Antonio Oct. 7, 2009, pet. denied)(not

designated for publication). Finally, when reviewing the report, each section of the

report should be read in the context of the entire report, not in isolation. VHS San

Antonio Partners LLC, 2009 WL 3223178 at *3; Stephanie M. Philipp, P.A. v.

McCreedy, 298 S.W.3d 682, 690-691 (Tex.App.-- San Antonio, no pet.). In the

26 seminal case Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex. 2013), a case

Appellant neglected to mention in his Brief, the Texas Supreme Court held that so

long as a plaintiff has pleaded and supported with an expert report “one viable

liability theory”, the plaintiff’s health care liability claim “cannot be frivolous” and

the plaintiff’s suit may proceed. Id. at 631.

Even a cursory examination of the Dr. Lipson’s expert report (RR Vol. 3,

Ex. 1; APP 3) reveals that Appellees have pleaded and supported with an expert

report at least “one viable liability theory” against Appellant.1

C. Appellant’s “but for” argument ignores the evidence provided in Loren Lipson, M.D.’s report.

Appellant argues in his Brief that “it should be obvious to all that a homicide

normally destroys the causal connection of anyone’s conduct, but that of the

attacker.” (Appellant’s Brief p. 24). Appellant makes the further argument that the

conclusions reached in Dr. Lipson’s expert constitute only “but for” arguments.

However, through this argument, the Appellant ignores the abundance of evidence

in Dr. Lipson’s report pertaining to foreseeability and the fact that Dr. Harrington,

as the primary care provider for Ms. Ramos, should have been aware of the

countless instances of abuse and falls and failed to acknowledge or address them.

1 As evinced by Appellant’s Brief, Appellant is not asserting on this appeal that Dr. Lipson was not qualified to opine as to causation regarding Sylvia Ramos’s injuries, such as her fractures, mental anguish, and numerous fall and abuse injuries, excluding her intracranial hemorrhage and death. 27 In support of his argument, Appellant cites to entirely distinguishable and

dissimilar cases, many of which pertain to surgical and radiological errors. Rather,

a case directly on point was decided by the Beaumont Court of Appeals.

At issue in Chumley was an expert report addressing a resident’s black eye

and broken ribs and breaches of the standard of care by a nursing home and its

staff. Silsbee Oaks Health Care, L.L.P. v. Chumley, 2010 Tex. App. LEXIS 10337

* 1, 2010 WL 5550671 (Tex. App.-- Beaumont Dec. 30, 2010). Just like Appellant

in this case, the defendant in Chumley argued that the expert’s discussion regarding

the standard of care was speculative and conclusory, lacked specificity, failed to

provide any factual basis, and erroneously concluded that negligence occurred

because injury occurred. Compare Chumley, 2010 WL 5550671 at *5-6 to

Appellant’s Brief at 17-27. Further, like Appellant in this case, the defendant in

Chumley argued that the report failed to establish the nexus between the breaches

of the standard of care and causation. Compare Chumley, 2010 WL 5550671 at

*6-7 to Appellant’s Brief at 17-27. Finally, like the trial court in this case, the trial

Court in Chumley rejected all of the defendant’s arguments and held that the report

satisfied the requirements of Section 74.351.

28 In determining that the trial court did not abuse its discretion, the Court of

Appeals in Chumley stated:

Essentially, the report states that the failure to properly monitor the patients, to make periodic rounds, and to train and instruct the nursing staff on assault prevention caused Chumley's injuries. The emergency room records reviewed by Rushing explain that Chumley stated he had been struck in the chest at the nursing home. Dr. Rushing's report addresses the possibility of a fall or an assault by an employee or another patient. Whether the broken ribs are the result of a fall or an assault, the report explains why the experts believe that Chumley's injuries arose from and were caused by the breach of the standard of care by Silsbee Oaks and its employees. At the medical report stage, given the incomplete status of discovery, the plaintiff is not required to prove its claim. See Apodaca v. Russo, 228 S.W.3d 252, 255 (Tex.App.-Austin 2007, no pet.). Although the expert report is not required to prove the defendant's liability, it must provide notice of what conduct forms the basis for the plaintiff's complaints. Id. Dr. Rushing relied on the history contained in the medical records he reviewed. One purpose of the expert report is to show that a plaintiff has a viable cause of action that is not frivolous or without expert support. Rushing's report sufficiently informs Silsbee Oaks of conduct by Silsbee Oaks that the plaintiff believes caused injury to Chumley. The trial court did not abuse its discretion in denying appellant's motion to dismiss.

Chumley, 2010 WL 5550671 at 7. Similar to Chumley, similar to his review of the

medical chart, Dr. Lipson explains why he believes Sylvia Ramos’ fall and abuse

injuries arose from and were caused by breaches of the standard of care by

Appellant. Dr. Lipson’s report sufficiently informs Appellant of conduct by

Appellant that Appellees believe caused the fall and abuse injuries to Sylvia

Ramos.

29 D. Loren Lipson, M.D.’s report is not conclusory as to causation.

Beyond Appellant’s argument that Dr. Lipson’s expert report fails to

adequately set forth breaches in the standard of care, Appellant argues: “Nowhere

in [his] report does Dr. Lipson even attempt to articulate any type of explanation as

to how Dr. Harrington’s alleged failure to follow these standard of care caused

Sylvia Ramos’ death, or even explain how these alleged violations caused

Plaintiff’s damages.” (Appellant’s Brief p. 18). Appellees will address this untrue

allegation below by presenting examples of Dr. Lipson’s various theories of

negligence below.

The Fourth Court of Appeals has agreed with the holding that an opinion is

speculative if an expert’s opinion is not supported by the established facts but only

by an assumption regarding the underlying facts. Cooper v. Arizpe, No. 04-07-

00734-CV, 2008 WL 94090, at *3 (Tex.App.—San Antonio Apr. 9, 2008, pet.

Denied) (mem. op.) (citing Murphy v. Mendoza, 234 S.W.3d 23, 28 (Tex.App.—El

Paso 2007, no pet.)). As articulated in Belden, an expert must explain the basis of

his statements and link his conclusions to the facts in order for his opinions not to

be conclusory. Belden, at *6. (citing Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex.

2010)). While the Appellant’s sole challenge is that causation is conclusory, and

Appellant did not object that Dr. Lipson failed to adequately discuss standard of

care and breach of standard of care, in order to comprehensively show how

30 causation is not conclusory, it helps to identify the standard of care, breach of

standard of care, and causation for the different theories of liability.

1. Failure to give appropriate input into Sylvia Ramos’ care plan

The Standard of Care:  “[T]he standard of care requires that the physician participate in the resident’s care planning assessment, monitor changes in the resident’s medical status, and provide consultation and treatment when called to do so, which includes prescribing new therapy, ordering a resident be transferred to another level of care, and conducting routine visits…A physician supervising the medical care of a nursing home resident has a duty to assist the facility in providing input into the resident’s care plan.” (RR Vol. 3, Ex. 1, p.5; APP 3).  “When faced with a resident who repeatedly wanders and suffers falls at a facility and a resident who is involved in numerous altercations with other residents and the subject of attacks by other residents, the standard of care requires the physician supervising the medical care of the resident to assist the facility in providing input into the resident’s care plan to address these problems.” (RR Vol. 3, Ex. 1, p. 5; APP 3).

Breach of the Standard of care:  “Dr. Harrington should have given appropriate input as to the deficiencies in Ms. Ramos’ care plan concerning her past falls and wanderings. Such input may have included, but is not limited to, the following: implementing timed toileting programs, regularly orienting Ms. Ramos with her environment to prevent wandering and confusion, monitoring and readjusting medications, investigating the cause of the injuries, lowering her bed, instituting bed rails, maintenance of proper hydration and nutrition, instituting bed alarms, and ordering additional supervision, assistance, modifying her environment, and/or assistive waling devices. Dr. Harrington also should have given appropriate input as to the deficiencies in Ms. Ramos’ care plan concerning the physical altercations she as involved in with other residents and the attacks she suffered. Such input may have included, but is not limited to, the following: identifying triggers for threats and attacks by other residents, investigating the cause of the injury/threat and implementing a care plan to address the cause, removing Ms. Ramos from close proximity to aggressive residents, and monitoring and modifying the environment as needed, Dr. Harrington breached the standard of care by failing to adequately review and 31 assist in providing input into Ms. Ramos’ care plan.” (RR Vol. 3, Ex. 1, p. 6; APP 3).

Supporting Facts:  “Incredibly, while a resident at Trisun, Ms. Ramos experienced seemingly constant wandering and sustained approximately 30 documented falls, and suffered numerous unexplained bruises and fractures.” (RR Vol. 3, Ex. 1, p. 5; APP 3).  “She also was involved in many altercations with other residents and on numerous occasions was the victim of resident on resident abuse.” (RR Vol. 3, Ex. 1, p. 6; APP 3).  “Ms. Ramos fell numerous times while at the Trisun. Ms. Ramos fell on 1/29/07 and was found on her left side with her arm tucked under her torso, which required further evaluation at the NIX Medical Center Hospital, where she diagnosed with acute vertebral compression fracture. On 2/20/11 Ms. Ramos fell, injured her head, and was transferred to Northeast Baptist Hospital for evaluation. Ms. Ramos suffered a scalp hematoma and elbow injury. Additional falls were noted on 1/30/07, 5/29/07, 6/1/07, 6/20/07, 9/6/07, 9/7/07, 9/12/07, 2/18/08, 8/1/08, 9/07/08, 10/14/08, 10/15/08, 11/3/08, 11/12/08, 3/11/08, 8/30/09, 11/20/09, 6/12/10, 9/12/10, 10/30/10, 5/1/11, 5/16/11, 6/26/11, 8/6/11, 8/24/11, 4/13/12, 5/1/12, 6/16/12, and 6/17/12. Ms. Ramos was noted to have fallen in the past 30 days on 4/9/07, 10/8/07, 1/14/08, 4/17/08, 9/27/08, 10/09/08, 12/04/08, 1/6/09, 1/15/09, 1/21/09, 1/28/09, 2/18/09, 4/7/09, 9/26/09, 10/05/09, 12/09/09, 2/22/10, 5/17/10, 6/14/10, 6/22/10, 6/30/10, 7/05/10, 9/29/10, 9/30/10, 10/28/10, 12/09/10, 2/3/11, 2/17/11, 6/18/11, 7/25/11, 5/2/12, 5/11/12, and 6/19/12.” (RR Vol. 3, Ex. 1, Ex. A, Paragraph No. 14; APP 3).  “In addition to the falls, other incidents in which Ms. Ramos was subjected to extreme risk for harm while at the facility included at least 12 instances of physical aggression involving other residents, including but not limited to the following: 4/3/07, 5/6/07, 4/7/07, 4/11/06, 4/19/07, 4/24/07, 6/20/07, 11/09/07, 12/06/07, 5/12/09, 6/8/09, and 9/21/09.” (RR Vol. 3, Ex. 1, Ex. A, Paragraph No. 17; APP 3).  “Ten additional physical altercations were documented throughout Ms. Ramos’ medical records. On 10/5/06, a resident in Room 28 yelled, pulled, pushed, and hit Ms. Ramos. On 6/1/07, another resident grabbed Ms. Ramos by the arm and threw her to the ground. On 11/3/08, a resident turned Ms. Ramos’ chair over with her in it knocking her to the

32 ground. On 11/5/08, a resident pushed Ms. Ramos onto the ground. On 3/09/09 and 8/30/09, Ms. Ramos was again knocked out of her chair by another resident. On 8/12/10, Ms. Ramos was grabbed and shoved to the floor by a resident from 13B causing her to hit her head on the wall railing. On 12/1/10, a resident picked up a wet floor sign and hit Ms. Ramos in the face with it. On 2/19/11, Ms. Ramos was pushed into the wall by another resident causing her to strike her head on the rail and sustain a large hematoma. On 5/1/11, patient “Natividad” pushed Ms. Ramos to the floor.” (RR Vol. 3, Ex. 1, Ex. A, Paragraph No. 18; APP 3).

Causation:  Fall Injuries: o “Specifically, on 11-20-09, Ms. Ramos suffered a left superior and inferior pubic fracture and left sided sacral insufficient fracture as a result fall caused by a staff member bumping into her. In response to Ms. Ramos’ injuries, Dr. Harrington noted in the medical records that that it was allowable to get Ms. Ramos up in her wheelchair and ordered Norco 10/325 mg tab 1 every 8 hours and Norco 10/325 every 4 hours for pain as needed. (Trisun 2358, 3148-3151). I am familiar with the fall type of pelvic fracture that occurred to Ms. Ramos on or about 11-20-09. A pelvic fracture is a disruption of the bony structure of the pelvis, including the sacrum and coccyx. The most common cause of this fracture in the elderly is from a fall. Diagnosis is made on the basis of history, clinical features, and x-rays and CTs. Signs and symptoms may include swelling, bruising, and pain. Ms. Ramos’ pelvic fracture was consistent with a fall mechanism of injury. The documentation confirms that on 11-20-09 a staff member at Trisun bumped Ms. Ramos causing her to fall.” (RR Vol. 3, Ex. 1, p. 8-9; APP 3). o “Additionally, on 3-20-10, a nurse identified swelling and bruising on Ms. Ramos’ left hand. An x-ray confirmed a diagnosis of the left fifth metacarpal. Although no explanation is given as to the cause of the fracture, the 3-23-10 nursing summary for Ms. Ramos indicates that Ms. Ramos suffered falls within the past 30 days. In reasonable medical probability, Ms. Ramos’ fifth metacarpal fracture occurred from a fall as it is a common type of injury that occurs in the elderly as a result of falls, and Ms. Ramos had a documented history of repeated falls.” (RR Vol. 3, Ex. 1, p. 9; APP 3).

33 o “Ms. Ramos’ falls and resulting fractures, and specifically including the 11-20-09 and 3-20-10 falls, were proximately caused in part by the aforementioned breaches of the standard of care by Dr. Harrington and Dr. Zarate. Dr. Harrington failed to properly assess Ms. Ramos, including an assessment of her fall risks, and failed to provide proper input into Ms. Ramos’ care plan to address falls and fall risks. If Dr. Harrington had properly assessed Ms. Ramos and provided proper input into Ms. Ramos’ care plan to address falls, in some of the ways enumerated above, in reasonable medical probability, Ms. Ramos would not have continued to suffer repeated falls and injuries and would not have suffered the 11-20-09 and 3-20-10 falls. Ms. Ramos’ 11-20-09 and 3-20-10 falls and injuries were proximately caused by the breaches in the standard of care by Dr. Harrington.” (RR Vol. 3, Ex. 1, p. 8-9; APP 3).

 Mental Anguish: o “I am familiar with the type of mental anguish that occurs when a resident is under persistent threats and attacks by other residents, similar to that mental anguish Ms. Ramos experienced during her residency at Trisun. Signs and symptoms of resulting mental anguish include, fear, anxiety, agitation, anger, non- responsiveness, confusion, unexplained bruises, depression, defensive behavior, and changes in behavior. Ms. Ramos’ medical chart is replete with instances of attacks and threats by other residents directed toward Ms. Ramos. Ms. Ramos’ medical chart is also replete with instances of Ms. Ramos experiencing fear, anxiety, agitation, anger, non-responsiveness, confusion, unexplained bruises, depression, defensive behavior, and changes in behavior. It is my medical opinion that in all reasonable probability Ms. Ramos suffered mental anguish from the resident on resident abuse she was subjected to at Trisun. Moreover, in all reasonable probability, this mental anguish was proximately caused by the aforementioned breaches in the standard of care by Dr. Harrington and Dr. Zarate.” (RR Vol. 3, Ex. 1, p. 9-10; APP 3). o “Had Dr. Harrington provided appropriate input in regard to the deficiencies in Ms. Ramos’ care plan concerning the physical altercations she was involved in with other residents, such as in the ways enumerated above which included, for example, removing Ms. Ramos from close proximity to aggressive residents or 34 identifying triggers for attacks, Ms. Ramos’ would not have suffered the mental anguish associated with continuing attacks and the fear of being a victim of attacks. Ms. Ramos’ mental anguish was proximately caused by the breaches in the standard of care by Dr. Harrington.” (RR Vol. 3, Ex. 1, p. 10; APP 3).

 Physical Injuries and Death from Resident on Resident Attacks o “On 2-19-11, a Trisun resident pushed Ms. Ramos, causing Ms. Ramos to strike her head against the railing on a hallway wall and suffer a head injury. Ms. Ramos was transferred to Northeast Baptist Hospital for evaluation. She was diagnosed with a large occipital hematoma. I am familiar with resident-on-resident assault type injuries that occurred to Ms. Ramos throughout her residency, and am specifically familiar with the type of injury that occurred on 2-19-11—the large occipital hematoma. It is my medical opinion that in all reasonable probability, Ms. Ramos’ large occipital hematoma was consistent with the blunt force head injury sustained as a result of the blow to her head against the hallway railing.” (RR Vol. 3, Ex. 1, p. 10; APP 3). o “On 7-16-12 Ms. Ramos suffered a terminal fall. Resident 11191 pushed Ms. Ramos, causing Ms. Ramos to fall and strike her head. Following the fall, Ms. Ramos was admitted to Northeast Baptist Hospital where she was diagnosed with an intracranial hemorrhage. She was then discharged to hospice care at Vitas Innovative Hospice Care on 7-18-12 where she died on 8-1-12. The Bexar County Medical Examiner classified Ms. Ramos’ death as a homicide and concluded that Ms. Ramos died due to complications of an acute hemorrhagic stroke following a her terminal fall with blunt force injury to the head.” (RR Vol. 3, Ex. 1, p. 10; APP 3). o “It is my medical opinion that had Dr. Zarate and Dr. Harrington met the aforementioned standard of care, in all reasonable probability Ms. Ramos would not have suffered continual threats, altercations, and attacks by other residents. Additionally, Ms. Ramos would not have suffered the assault on 2-19-11 that resulted in a large occipital hematoma and she would not have suffered the assault on 7-16-12 that resulted in her death.” (RR Vol. 3, Ex. 1, p. 11; APP 3). o “If Dr. Harrington had provided appropriate input in regard to the deficiencies in Ms. Ramos’ care plan concerning the physical 35 altercations she was involved in with other residents, as required by the standard of care, the care plan for Ms. Ramos would have addressed the issue of resident on resident attacks and measures would have been taken to protect Ms. Ramos from future attacks, such as the measures discussed above…If such measures had been taken, in reasonable medical probability Ms. Ramos would not have been pushed by residents on either 2-9-11 or 7-16-12, and she would not have suffered a large occipital hematoma and intracranial hemorrhage that resulted in her death. Had Dr. Harrington met the standard of care, in reasonable medical probability, Ms. Ramos’ untimely death would have been prevented.” (RR Vol. 3, Ex. 1, p. 11; APP 3). o “Dr. Harrington and Dr. Zarate had years to intervene in Ms. Ramos’ substandard care, but failed to do so. The numerous injuries Ms. Ramos suffered were not isolated incidents, but were repeated with egregious frequency throughout Ms. Ramos’ residency, which should have immediately been recognizable to her physician, Dr. Harrington, and the medical director, Dr. Zarate. Dr. Harrington and Dr. Zarate absolutely had a duty to intervene on Ms. Ramos’ behalf and their failure to do so resulted in Ms. Ramos continuing to receive substandard care in an unsafe environment. If Dr. Harrington and Dr. Zarate had intervened in Ms. Ramos’ care, Ms. Ramos’ untimely death would not have occurred.” (RR Vol. 3, Ex. 1, p. 11-12; APP 3).

2. Failure to Timely and Properly Assess Sylvia Ramos and Accurately Document her Health Conditions.

Standard of Care  “The standard of care requires that a treating physician assess a resident as frequently as dictated by the medical needs of the resident. Under Medicaid/Medicare guidelines, at a Medicaid certified skilled nursing facility, a physician is required to see the resident at least once every 30 days for the first 90 days after admission and at least once every 60 days thereafter.” (42 CFR §483.40(c)(1-2)). (40 TAC §19.1203(2)(a)). (RR Vol. 3, Ex. 1, p. 6; APP 3).  “Moreover, when a treating physician does assess a resident, the standard of care requires that the physician review the resident’s total program of care, including medication and treatments. The visit should also include an evaluation of the resident’s condition and a review of the continued 36 appropriateness of the resident’s current medical regimen.” (RR Vol. 3, Ex. 1, p. 6; APP 3).  “The standard of care requires that documentation accurately reflect care being given and the status of the patient. At each visit with a nursing home facility resident, the treating physician should write, sign and date progress notes recording the resident’s progress or problems in maintaining or improving mental and physical status.” (42 CFR §483.40(b)(1-3)). (40 TAC §19.1202).” (RR Vol. 3, Ex. 1, p. 6-7; APP 3).

Breach of the Standard of Care  “Dr. Harrington breached the standard of care by failing to perform timely and adequate assessments of Ms. Ramos.” (RR Vol. 3, Ex. 1, p. 6; APP 3).  “Dr. Harrington breached the standard of care as evidenced by his deficient documentation.” (RR Vol. 3, Ex. 1, p. 6; APP 3).

Supporting Facts:  “In the present case, significant lapses between physician assessments occurred. For example, after Ms. Ramos was assessed on September 7, 2011, she was not assessed again until December 7, 2011. Another lapse in assessment occurred between March 23, 2011 and July 7, 2011. These lapses in assessments occurred despite the recurring falls, wanderings, physical altercations with other residents, and other injuries experienced by Ms. Ramos. Ms. Ramos’ condition certainly indicated the need for more frequent assessments.” (RR Vol. 3, Ex. 1, p. 6; APP 3).  “According to the Progress Notes/Nursing Facility Care, Annual Assessment Encounters/History and Physical Updates/UT Medicine Senior Health Long Term Follow-up Care Visits for Ms. Ramos, Ms. Ramos was assessed by a physician/nurse practitioner on the following dates: . . . . Consequently, it appears that significant lapses in assessments occurred, and specifically between the following dates: 9-7-11 and 12-7- 11; 3-23-11 and 7-7-11; 7-22-08 and 11-21-08; 1-30-08 and 4-2-08; and 10-31-07 and 12-9-07.” (RR Vol. 3, Ex. 1, p. 4-5; APP 3).  “In his assessments of Ms. Ramos, Dr. Harrington failed to adequately review the total plan of care for Ms. Ramos or adequately evaluate Ms. Ramos’ condition. Ms. Ramos suffered numerous unexplained bruises, fractures, and vaginal bleeding during the time she was a resident at Trisun. No investigation into the source of those injuries by Dr.

37 Harrington is apparent in the medical records. Beyond the fact that there does not appear to have been any investigation, Dr. Harrington seemingly ignored Ms. Ramos’ ongoing issues. For example, on 11-03-09 and 11- 04-10, Dr. Harrington noted that Ms. Ramos had no new issues and to continue with the present care on 11-03-09 and 11-04-10.” (RR Vol. 3, Ex. 1, p. 6; APP 3).  “As discussed above, Ms. Ramos suffered numerous unexplained bruises, fractures, approximately 30 documented falls, dozens of threats and physical altercations with other residents, and vaginal bleeding during the time she was a resident of Trisun. On numerous occasions, Dr. Harrington failed to properly document these problems and Ms. Ramos’ associated declining mental and physical status in his progress notes.” (RR Vol. 3, Ex. 1, p. 7; APP 3).

Causation:  Fall Injuries: o “Ms. Ramos’ falls and resulting fractures, and specifically including the 11-20-09 and 3-20-10 falls, were proximately caused in part by the aforementioned breaches of the standard of care by Dr. Harrington and Dr. Zarate. Dr. Harrington failed to properly assess Ms. Ramos, including an assessment of her fall risks, and failed to provide proper input into Ms. Ramos’ care plan to address falls and fall risks. If Dr. Harrington had properly assessed Ms. Ramos and provided proper input into Ms. Ramos’ care plan to address falls, in some of the ways enumerated above, in reasonable medical probability, Ms. Ramos would not have continued to suffer repeated falls and injuries and would not have suffered the 11-20-09 and 3-20-10 falls. Ms. Ramos’ 11-20-09 and 3-20-10 falls and injuries were proximately caused by the breaches in the standard of care by Dr. Harrington.” (RR Vol. 3, Ex. 1, p. 8-9; APP 3).

 Physical Injuries and Death from Resident on Resident Attacks o “It is my medical opinion that had Dr. Zarate and Dr. Harrington met the aforementioned standard of care, in all reasonable probability Ms. Ramos would not have suffered continual threats, altercations, and attacks by other residents. Additionally, Ms. Ramos would not have suffered the assault on 2-19-11 that resulted in a large occipital hematoma and she would not have suffered the

38 assault on 7-16-12 that resulted in her death.” (RR Vol. 3, Ex. 1, p. 11; APP 3). o “If Dr. Harrington had provided appropriate input in regard to the deficiencies in Ms. Ramos’ care plan concerning the physical altercations she was involved in with other residents, as required by the standard of care, the care plan for Ms. Ramos would have addressed the issue of resident on resident attacks and measures would have been taken to protect Ms. Ramos from future attacks, such as the measures discussed above…If such measures had been taken, in reasonable medical probability Ms. Ramos would not have been pushed by residents on either 2-9-11 or 7-16-12, and she would not have suffered a large occipital hematoma and intracranial hemorrhage that resulted in her death. Had Dr. Harrington met the standard of care, in reasonable medical probability, Ms. Ramos’ untimely death would have been prevented.” (RR Vol. 3, Ex. 1, p. 11; APP 3). o “Dr. Harrington and Dr. Zarate had years to intervene in Ms. Ramos’ substandard care, but failed to do so. The numerous injuries Ms. Ramos suffered were not isolated incidents, but were repeated with egregious frequency throughout Ms. Ramos’ residency, which should have immediately been recognizable to her physician, Dr. Harrington, and the medical director, Dr. Zarate. Dr. Harrington and Dr. Zarate absolutely had a duty to intervene on Ms. Ramos’ behalf and their failure to do so resulted in Ms. Ramos continuing to receive substandard care in an unsafe environment. If Dr. Harrington and Dr. Zarate had intervened in Ms. Ramos’ care, Ms. Ramos’ untimely death would not have occurred.” (RR Vol. 3, Ex. 1, p. 11-12; APP 3).

3. Failure to Discharge Sylvia Ramos to a Level of Care that Could Meet Her Health Needs.

Standard of Care:  “When a nursing home facility cannot meet a resident’s needs, and the treating physician becomes aware of this information, the standard of care requires the physician to coordinate discharge of the resident to a facility that can meet the level of care required by the patient. (RR Vol. 3, Ex. 1, p. 7; APP 3).

Breach of the Standard of Care: 39  “Dr. Harrington breached the standard of care by failing to discharge Ms. Ramos from Trisun to another facility when it became clear that Trisun could not meet Ms. Ramos’ needs.” (RR Vol. 3, Ex. 1, p. 7; APP 3).

Supporting Facts:  “Based on the sheer number falls and wanderings, and the injuries Ms. Ramos suffered as a result of her falls, Dr. Harrington should have recognized that Trisun was not meeting Ms. Ramos’ health needs and should have discharged Ms. Ramos. Additionally, as a result of the numerous physical altercations with other residents, close proximity to aggressive residents, constant wandering, instances of unexplained vaginal bleeding and bruising, and fractures, Dr. Harrington should have recognized that Trisun could not meet Ms. Ramos’ health needs and should have discharged Ms. Ramos.” (RR Vol. 3, Ex. 1, p. 7; APP 3).

Causation:  Physical Injuries and Death from Resident on Resident Attacks o “It is my medical opinion that had Dr. Zarate and Dr. Harrington met the aforementioned standard of care, in all reasonable probability Ms. Ramos would not have suffered continual threats, altercations, and attacks by other residents. Additionally, Ms. Ramos would not have suffered the assault on 2-19-11 that resulted in a large occipital hematoma and she would not have suffered the assault on 7-16-12 that resulted in her death.” (RR Vol. 3, Ex. 1, p. 11; APP 3). o “If Ms. Ramos continued to suffer attacks and threats by other residents and Trisun was unable to keep Ms. Ramos safe, Dr. Harrington should have discharged Ms. Ramos to a facility that could meet her needs. If such measures had been taken, in reasonable medical probability Ms. Ramos would not have been pushed by residents on either 2-9-11 or 7-16-12, and she would not have suffered a large occipital hematoma and intracranial hemorrhage that resulted in her death. Had Dr. Harrington met the standard of care, in reasonable medical probability, Ms. Ramos’ untimely death would have been prevented.” (RR Vol. 3, Ex. 1, p. 11; APP 3). o “Dr. Harrington and Dr. Zarate had years to intervene in Ms. Ramos’ substandard care, but failed to do so. The numerous injuries Ms. Ramos suffered were not isolated incidents, but were repeated with egregious frequency throughout Ms. Ramos’ 40 residency, which should have immediately been recognizable to her physician, Dr. Harrington, and the medical director, Dr. Zarate. Dr. Harrington and Dr. Zarate absolutely had a duty to intervene on Ms. Ramos’ behalf and their failure to do so resulted in Ms. Ramos continuing to receive substandard care in an unsafe environment. If Dr. Harrington and Dr. Zarate had intervened in Ms. Ramos’ care, Ms. Ramos’ untimely death would not have occurred.” (RR Vol. 3, Ex. 1, p. 11-12; APP 3).

Dr. Lipson’s report fairly summarizes the applicable standard of care with

regard to the care and treatment of Sylvia Ramos by Dr. Gerald Harrington,

explains how the Appellant failed to meet that standard, and establishes the causal

relationship between the failures and Sylvia Ramos’ multiple injuries, including

her intracranial hemorrhage and death. The standard of care, breaches, and

causation injuries resulting from such breaches are clearly linked and supported by

the evidence in the report.

Because Dr. Lipson’s report satisfies the requirements of a report under

Section 74.351 as to the Appellees’ multiple theories of liability related to Sylvia

Ramos’ injuries, including her intracranial hemorrhage and death, any of which

would make the report sufficient, Appellees are entitled to proceed with all theories

of liability in their suit against Appellant. Potts, 392 S.W.3d at 630. The trial

court properly denied Appellant’s motion to dismiss.

VI. Request for Damages for Frivolous Appeal

Pursuant to the Texas Rule of Appellate Procedure Rule 45, Appellees

hereby respectfully request that the Court award Appellees damages for the 41 expense associated with Appellant’s frivolous appeal. (APP 15). TEX. R. APP. P.

R.45. Accordingly, Appellees have included an Affidavit of expenses associated

with responding to Appellant’s frivolous appeal. (APP 16).

Given the record regarding multiple theories of negligence included within

the expert report, the holding in Potts, and the discretion vested in the trial court,

this appeal is clearly frivolous.

Appellant’s various arguments regarding purported deficiencies in Dr.

Lipson’s report lack legitimacy and merit. Appellant’s arguments, when viewed in

the context of the entirety of Dr. Lipson’s report and the controlling case law,

exemplify that this is a frivolous appeal under Rule 45 of the Texas Rules of

Appellate Procedure. See Owen v. Jim Alle Imps., Inc., 380 S.W.3d 276, 290 (Tex.

App. – Dallas 2012, no pet.)(“An appeal is frivolous when the record, viewed from

the perspective of the advocate, does not provide reasonable grounds for the

advocate to believe that the case could be reversed.”). (APP 15).

VII. In the event that the Court determines the report is deficient, Appellees should be granted an opportunity to cure the deficiency.

In the event the Court finds that Dr. Lipson’s report is for some reason

deficient, Appellees request that the Court remand the case to the trial court so that

Appellees may seek a 30-day extension in which to cure the deficiency. See TEX.

CIV. PRAC. & REM. CODE §74.351(c)(APP 9); Leland v. Brandal, 257 S.W.3d 204,

207 (Tex.2008) (“We agree with the court of appeals that section 74.351’s plain 42 language permits one thirty-day extension when the court of appeals finds deficient

a report that the trial court considered adequate.”); Leland v. Brandal, 217 S.W.3d

60, 64 (Tex. App. – San Antonio 2006), aff’d 257 S.W.3d 204 (Tex.

2008)(reversing trial court’s order denying motion to dismiss and remanding to

trial court for consideration of plaintiff’s request for a 30-day extension to cure

deficiencies). See also, Samlowski v. Wooten, 332 S.W.3d 404, 411 (Tex.

2011)(“[C]ourts should err on the side of granting claimants’ extensions to show

the merits of their claims.”).

VIII. Conclusion

Appellant has waived his objections as a matter of law. Even if such

objections were not waived, Appellees’ expert, Loren Lipson, M.D. is qualified to

render the opinions provided in his Ch. 74 Expert Report. Moreover, Appellees

have indisputably pleaded and supported with an expert report at least “one viable

liability theory” against Appellant. As such, the trial court did not abuse its

discretion when it denied Appellant’s Motion to Dismiss. The trial court’s

decision should be affirmed.

PRAYER

For the reasons stated above, Appellees respectfully request that this Court

affirm the trial court’s order denying Appellant’s Motion to Dismiss and grant

Appellees’ request for attorneys’ fees associated with responding to Appellant’s 43 frivolous appeal. Alternatively, should the Court determine for some reason that

Appellees’ expert report is deficient, then Appellees pray that the matter be

remanded to the trial court so that Appellees may seek a 30-day extension in which

to cure the deficiency. Appellees further request such other and further relief to

which Appellees are justly entitled.

Respectfully submitted,

Law Offices of Pat Maloney, P.C.

By: ________/s/ Byron B. Miller__________ Byron B. Miller, State Bar No. 24074716 byron@maloneylawgroup.com Michael Maloney, State Bar No. 12883300 mikem@maloneylawgroup.com Erica Maloney, State Bar No. 24085698 ericam@maloneylawgroup.com 322 W. Woodlawn Ave., Suite 1 San Antonio, Texas 78212 Telephone: 210-228-0400 Facsimile: 210-735-8431 Attorneys for Appellees

44 TEX. R. APP. P. 9.4(i)(3) CERTIFICATE OF COMPLIANCE

I hereby certify that this computer generated document, excluding the

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, statement or procedural history, signature, proof of

service, certification, certificate of compliance and appendix contains 11,099

words based on the word count of the software used to generate the document.

_____/s/ Byron B. Miller______________ Byron B. Miller

45 CERTIFICATE OF SERVICE

I hereby certify that on this, the 11th day of May, 2015, this document was

served on the parties to this appeal as follows:

By Certified Mail, Return Receipt Requested and by e-mail to Mail@Hole&Alvarez.com Ronald G. Hole Hole & Alvarez, L.L.P. P.O. Box 720547 McAllen, Texas 78504-0547 Attorney for Appellant

Ms. Emily J. Davenport Reed, Claymon, Meeker & Hargett, P.C. 5608 Parkcrest Drive, Suite 200 Austin, Texas 78731 E-Mail: edavenport@rcmhlaw.com Attorney for Defendant, PM Management – Windcrest NC, LLC d/b/a Trisun Care Center Windcrest

Mr. W. Richard Wagner Wagner & Cario, LLP 7705 Broadway San Antonio, Texas 78209 E-Mail: rwagner@wagnercario.com Attorneys for Defendant, Setters Medical Group, P.A.

Ms. Lisa A. Rocheleau Boone, Rocheleau & Rodriguez, P.L.L.C. 10101 Reunion Place, Suite 600 San Antonio, Texas 78209 E-Mail: lrocheleau@br-lawfirm.com Attorneys for Defendants, Rodolfo Zarate, M.D. and Zarate Medical Group, P.A.

_____/s/ Byron B. Miller________ Byron B. Miller 46

Plaintiffs’ 1st Amended Original Petition (CR 11-21) .............................................. 1

Plaintiffs’ 2nd Amended Original Petition…………………………………………2

Loren Lipson, M.D.’s Expert Report as to Dr. Harrington (RR Vol. 3 Ex. 1) ……. 3

Loren Lipson, M.D.’s Curriculum Vita.…………………………………………...4

Loren Lipson, M.D.’s Expert Report as to Trisun Care Center Windcrest (RR Vol. 3 Ex. 1, Ex. A)............................................................................................................ 5

Defendant Gerald Harrington, M.D.’S Objections toPlaintiffs’ Expert Report Pursuant to Section 74.351 of the Texas Civil Practice & Remedies Code (CR 26- 31)…………………………………………………………………………………..6

RR Vol. 2, p. 1-52…………………………..………………………………………7

Order Denying Motion to Dismiss (CR 41-42) ......................................................... 8

TEX. CIV. PRAC. & REM. CODE § 74.351.................................................................... 9

Order Granting Motion for Withdrawal and Substitution of Counsel…………….10

Appellant’s Deficient Notification of Service (RR Vol. 3, Ex. 3) ………….…….11

Tex. R. Civ. P. R. 21(a)………………………...…………………………………12

TEX. CIV. PRAC. & REM. CODE § 74.001.................................................................. 13

TEX. CIV. PRAC. & REM. CODE § 74.403(a)……..………………………………..14

TEX. R. APP. P. R.45……………………………………………………………...15

Affidavit as to Appellees’ expenses......................................................................... 16

47 TEX. CIV. PRAC. & REM. CODE § 74.401……………………………………...17