NUMBER 13-12-00331-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
HENRY SCOTT BAKER, Appellant,
v.
REGENCY NURSING AND REHABILITATION CENTERS, INC., PORT LAVACA NURSING AND REHABILITATION CENTER, INC., REGENCY NURSING CENTER PARTNERS OF PORT LAVACA, LTD., TIMOTHY MCFARLAND, M.D., AND DON PAUL BUNNELL, M.D., Appellees.
On appeal from the 24th District Court of Calhoun County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Chief Justice Valdez Appellant, Henry Scott Baker’s deceased father, Henry Herbert Baker (the
“deceased”), was a patient of appellees, Regency Nursing and Rehabilitation Centers,
Inc., Port Lavaca Nursing and Rehabilitation Center, Inc., Regency Nursing Center
Partners of Port Lavaca, Ltd., Timothy McFarland, M.D., and Don Paul Bunnel, M.D.
Baker appeals from the trial court’s order dismissing his cause of action against
appellees. By six issues, which we have renumbered and reorganized, Baker contends
that the trial court abused its discretion by: (1) ruling that Baker’s expert was not
qualified to render an expert report; (2) considering and relying on information outside
the four corners of the expert report and “effectively” granting summary judgment in
favor of appellees; (3) finding that the expert report was deficient; and (4) incorrectly
concluding that the statute of limitations had expired when Baker filed suit. We reverse
and remand.
I. BACKGROUND
The deceased died on June 15, 2009 at the Port Lavaca Nursing and
Rehabilitation Center (“PLNRC”). On August 10, 2011, Baker filed suit against
appellees claiming that appellees had negligently violated the standard of care and had
violated the requirements of the Texas Nursing Home Regulations because appellees
failed to ensure that the deceased: (1) “did not develop pressure sores unless his
clinical condition demonstrated that pressure sores were unavoidable”; (2) was provided
the “necessary treatment and services to promote healing, prevent infection and prevent
new sores from developing, when [the deceased] developed pressure sores”; (3)
“received appropriate treatment and services to correct any mental or psychological
adjustment difficulty”; (4) “received adequate supervision and assistive devices to
2 prevent accidents”; (5) “maintained acceptable parameters of nutritional status, such as
body weight and protein levels, unless his clinical condition demonstrated that was not
possible, and required [PLNRC] to ensure that [the deceased] received a therapeutic
diet when there was a nutritional problem”; (6) was “free of” any “unnecessary drugs”;
and (7) “received gradual dose reductions for the anti-psychotic drugs that [appellees]
prescribed to him and behavior interventions, so that [the deceased] could discontinue
use of the may anti-psychotic and psycho-active medications which [appellees] used to
control [the deceased’s] behavior.” Baker claimed that appellees and their employees,
acting within the course and scope of their employment, negligently failed to provide the
proper level of care to the deceased. Baker stated that “as a sole, direct, and proximate
result of [appellees’] negligence, and their agents or employees” the deceased suffered:
(1) “large ulcerous wounds that required hospitalization and amputation, extreme pain
and suffering, loss of enjoyment of life and his death”; (2) “malnutrition that caused
extreme pain and suffering, loss of enjoyment of life and his death”; and (3) “confusion,
diminished mental capacity, loss of the ability to speak and communicate, depression,
anxiety, fear, extreme emotional distress and loss of enjoyment of life.” Baker accused
the appellees of causing the deceased’s death by the following allegedly negligent acts
and omissions: (1) providing “inadequate assessment, evaluation, and management of
the effect on [the deceased’s] health from the combination of anti-depressant, anti-
psychotic, psycho-active, and other medications that were being administ[ered]”; (2)
causing the deceased “to become overmedicated”; (3) failing to maintain “a proper
regimen of exercise, physical therapy, nutrition, skin care, and personal hygiene for [the
deceased]”; (4) administering medications to the deceased “for the convenience of
3 [appellees], who otherwise would have been required to spend more time and energy in
caring for and treating [the deceased]”; (5) permitting “the life-threatening conditions
suffered by [the deceased] to deteriorate without rendering appropriated remedial or
curative treatment, despite knowing that if these conditions continued for any length of
time these conditions would pose a sever threat to [the deceased’s] health and life”; (6)
refusing “to take appropriate action necessary to prevent the deterioration of the life
threatening conditions”; and (7) failing to “timely and appropriately order diagnostic
and/or laboratory tests, medical procedures and/or other intervention or treatments that
could have spared [the deceased’s] right leg and life, including but not limited to
peripheral vascular testing to determine whether he suffered from arterial or venous
insufficiency, and/or arterial or venous grafts or other procedures to restore or increase
blood flow into his limbs.”
Baker filed an expert report from Lige Rushing, M.D. on November 18, 2011.
Appellees objected to the report for a variety of reasons. The trial court ordered a
supplemental report. After Baker filed a supplemental report, appellees again objected
to Dr. Rushing’s report arguing that the report did not sufficiently advise them of the
nature of Baker’s claims, that Baker’s claims were barred by the statute of limitations,
and that the deceased’s sores were “unavoidable.”1 The trial court granted appellees’
objections and dismissed the case. This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review the trial court’s decision on a motion to dismiss a health care liability
claim under an abuse of discretion standard. Am. Transitional Care Ctrs. of Tex., Inc.
1 Appellees did not file any expert reports or affidavits supporting their arguments.
4 v. Palacios, 46 S.W.3d 873, 877–78 (Tex. 2001). “An abuse of discretion occurs when
a trial court acts in an arbitrary or unreasonable manner or without reference to any
guiding principles.” Moore v. Sutherland, 107 S.W.3d 786, 789 (Tex. App.—Texarkana
2003, pet. denied) (citing Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999)). We
may not reverse for abuse of discretion simply because we would have decided the
matter differently. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.
1985).
We may not substitute our judgment for that of the trial court concerning the
resolution of factual issues or matters committed to the trial court’s discretion. Walker v.
Packer, 827 S.W.2d 833, 839 (Tex.1992). The appellant must “establish that the trial
court could reasonably have reached only one decision.” Id. at 840. A trial court has no
discretion in determining what the law is or in applying the law to the facts and “a clear
failure by the trial court to analyze or apply the law correctly will constitute an abuse of
discretion.” Id.
Section 74.351 requires a plaintiff to serve on each defendant physician or health
care provider whose conduct is implicated by a healthcare liability claim a curriculum
vitae of each expert listed in the report and one or more expert reports setting forth the
standard of care, breach of the standard of care, and causation. TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351(a), (r)(6) (West 2011). An “expert report” is defined as
a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
Id. § 74.351(r)(6).
5 A court must grant a motion to dismiss under section 74.351(b) if, after the 120-
day deadline has passed, it appears to the court that the report does not represent an
objective, good-faith effort to comply with the definition of an expert report. Id. §
74.351(l). A “good-faith effort” means that the report “provide[s] enough information
to . . . inform the defendant of the specific conduct the plaintiff has called into
question . . . [and] a basis for the trial court to conclude that the claims have merit.”
Palacios, 46 S.W.3d at 879. A report cannot constitute a good-faith effort if it omits any
of the statutory requirements. Id.
III. OBJECTIONS TO DR. RUSHING’S QUALIFICATIONS
By his first issue, Baker contends that the trial court abused its discretion in
finding that Dr. Rushing was not qualified to file an expert report. Specifically, appellees
challenged Dr. Rushing’s report in the trial court on the basis that he was not qualified to
opine regarding causation. 2
Not every licensed physician is always qualified to testify on every medical
question. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996). Therefore, the focus
should not be on whether the expert is a physician and instead should be on the
medical expert’s “knowledge, skill, experience, training, or education” concerning 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 153–54 (applying Texas Rule of Evidence
702).
In his report, Dr. Rushing stated that he is a practicing physician licensed by the
State of Texas and that he received his M.D. Degree from Baylor University College of
2 We note that on appeal, appellees do not address this issue.
6 Medicine in Houston, Texas. Dr. Rushing received his “specialty training in internal
medicine and rheumatology at the Mayo Clinic” in Rochester, Minnesota. Dr. Rushing
is board certified in internal medicine, rheumatology, and geriatrics. Dr. Rushing stated
that “at the time of the occurrence of this case, [he] was actively engaged in the practice
of internal medicine, rheumatology, and geriatrics” and that he has continued “to
actively practice in these specialties as of [November 17, 2011, the date he wrote his
report].” Dr. Rushing stated that in order to write his report, he reviewed records from
Memorial Medical Center and PLNRC, the deceased’s death certificate, Baker’s petition
for damages, Dr. McFarland’s answer, PLNRC’s answer, and Dr. McFarland’s office
records from Coastal Medical Center.
Our review of Dr. Rushing’s curriculum vitae shows that at the time of the lawsuit,
he was certified by the American Board of Geriatrics, the American Board of
Independent Medical Examiners, the American Board of Internal Medicine, and the
American Board of Rheumatology. Dr. Rushing was also an attending physician at
Presbyterian Hospital of Dallas, Texas. Dr. Rushing was also a member of, among
other organizations, the American Geriatric Society.
In his report, Dr. Rushing explained the methodology that he used to formulate
his opinions regarding the standard of care, the breach of the standard of care, and
causation. Dr. Rushing stated that he evaluated whether “breaches in the standards of
care resulted in any injury to [the deceased]” by employing the “generally accepted
method for evaluating whether or not a long-term care facility, a hospital, or a
physician’s care and treatment of a patient met or fell below the accepted standards of
care.” Dr. Rushing stated that his opinions were based on his “review of the pertinent
7 medical records, [his] education, training, and experience as a practicing board certified
internist, geriatrician, and rheumatologist and [his] knowledge of the accepted medical
and nursing standards of care for the diagnoses, care, and treatment of the illnesses,
injuries, and conditions involved in this claim.”
In his report, Dr. Rushing set out the complex nature of the deceased’s medical
conditions upon admission to the nursing home in this case and explained that “in the
regular course of [his] medical practice” he has examined, diagnosed, and treated
“patients with complaints and diseases similar or identical” to the complaints and
diseases suffered by the deceased. Dr. Rushing stated:
During the course of my career, I have served as a primary care physician for more than 10,000 hospitalized and nursing home patients. I have had patients who were at high risk for pressure ulcer development like [the deceased]. I have written orders for the prevention and the treatment of pressure ulcers such as [the deceased] had. I have supervised the execution of these orders by LVNs, RNs, [and] CNAs who were assigned to provide the hands-on nursing care for my patients. I am therefore intimately familiar with the standards of care for the RNs, LVNs, and CNAs who were providing hands-on care for [the deceased].
As set out above, Dr. Rushing is licensed to practice medicine in Texas. He is
board certified in internal medicine and geriatrics and is actively engaged in the practice
of these specialties. He regularly engages in the diagnosis and treatment of patients
who have similar or identical conditions to those suffered by the deceased. Finally, Dr.
Rushing stated that he has treated patients in nursing homes and patients with a high
risk of pressure ulcers and patients who have pressure ulcers. We conclude that Dr.
Rushing has the “knowledge, skill, experience, training, or education” to opine on the
issue before the trial court on whether the appellees’ alleged breach in not providing
appropriate wound care to the deceased caused his pressure ulcers, caused the
8 pressure ulcers to become worse, and caused his eventual death.3 Therefore, the trial
court abused its discretion if it determined that Dr. Rushing was not qualified to opine
regarding causation. We sustain Baker’s first issue.
IV. OBJECTIONS TO ADEQUACY OF DR. RUSHING’S REPORT
Next, by his second issue, Baker contends that the trial court relied on
information that was not contained within the four corners of the expert report and
essentially granted summary judgment in favor of appellees without proper discovery. 4
Appellees respond that Dr. Rushing’s report failed “to address the [deceased’s] medical
reports that indicated the ulcers were unavoidable and the [the deceased] was being
given palliative care. . . . .”5 Thus, according to appellees, “Dr. Rushing dodged the
critical medical causation issue determinative of whether the case is meritorious.” 6 By
his third issue, Baker contends that Dr. Rushing’s report is sufficient.
A. Other Causes
Appellees complained to the trial court that Dr. Rushing failed to consider the
deceased’s medical records that state that the ulcers were unavoidable because of
3 We note that the death certificate states that the deceased died as a result of Alzheimer’s, malnutrition, and wounds contractures. 4 Baker alleges that the trial court relied on the deceased’s medical records when determining whether Dr. Rushing’s report was sufficient. We note that according to Baker the medical records consist of over 2,000 pages. 5 Appellees cited Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997) to support their argument that an expert report requires that the expert rule out other possible causes of the patient’s injury. However, Havner concerns the reliability of an expert’s testimony at trial pursuant to an objection under rule of evidence 702. See id. Havner does not concern an expert’s report submitted to satisfy section 74.351. Appellees do not explain how Havner should apply to an expert report submitted to satisfy section 74.351, and we conclude that Havner does not apply in this context. 6 On appeal, appellees cite the same cases cited to the trial court which deal with exclusion of expert testimony pursuant to rule of evidence 702. Appellees did not acknowledge in the trial court and on appeal that their arguments relate to testimony at trial being excluded under rule 702. Moreover, appellees did not argue to the trial court and do not argue on appeal that rule 702 applies to an expert report filed pursuant to section 74.351.
9 other possible causes.7 However, whether the ulcers were unavoidable is a defensive
theory that must be supported by the evidence presented at trial, and constitutes a
question of fact for the jury to determine. Wisenbarger v. Gonzales Warm Springs
Rehabilitation Hospital, 789 S.W.2d 688, 690 (Tex. App.—Corpus Christi 1990, writ
denied) (stating that “[i]n a medical negligence case, when expert testimony establishes
that another physical condition or circumstance was the probable cause of the injury,
the definition of unavoidable accident must immediately follow the jury instruction
defining proximate cause” and that an “[u]navoidable accident [definition] is to be
submitted [to the jury] when there is a possible causal effect of some physical condition
or circumstance, or when one of the parties to the event is incapable of negligence.”).8
Here, we are examining the sufficiency of an expert report pursuant to section 74.351.
At this stage of the proceeding, no evidence has been presented, and a plaintiff is
7 The issue of “unavoidable accident” can be raised in cases involving medical negligence. For example, in Wisenbarger v. Gonzales Warm Springs Rehabilitation Hospital, a paraplegic patient sued the treating health care provider because he developed “a bed sore, or decubitus ulcer” on his spine while being treated. 789 S.W.2d 688, 690 (Tex. App.—Corpus Christi 1990, writ denied ). The jury charge included an unavoidable accident instruction. Id. at 691–92. We stated, “An instruction on unavoidable accident is properly submitted if any evidence shows that neither party proximately caused the incident in question.” Id. at 92. We further explained that “in this case, in order for an instruction on unavoidable accident to be proper, there must have been some evidence offered by an expert, or evidence from which inferences could be made, that it was probable that Wisenbarger’s decubitus ulcer was not proximately caused by the negligence of any party but was instead caused by some other physical condition or circumstance.” Id. 8 See Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006) (explaining that unavoidable accident is not an alternative theory of liability but is “an inferential rebuttal issue that requires plaintiffs to prove the nonexistence of an affirmative defense . . .”; and must be raised by the evidence before the definition is included in the jury charge); Lemos v. Montez, 680 S.W.2d 798, 800 (Tex. 1984) (citing Dallas Ry. & Terminal Co. v. Bailey, 250 S.W.2d 379, 380, 151 Tex. 359 (Tex. 1952)) (“[I]f the evidence does not raise the issue that something other than the negligence of one of the parties (to the event) caused the injuries, then it does not raise the issue of unavoidable accident” and if “[u]navoidable accident was not raised by the evidence in this case . . . the court erred in giving the instruction.”); see also Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 433 (Tex. 2006) (stating that unavoidable accident instruction informs jury it may consider causes of occurrence other than negligence of parties, including causes such as obstruction of view); Harris v. Vazquez, No. 03-07-00245-CV, 2008 Tex. App. LEXIS 4117, at *15 (Tex. App.—Austin June 5, 2008, no pet.) (documenting that the jury found no liability on either driver where the trial court submitted unavoidable accident instruction because one driver testified that his view was obstructed).
10 neither required, nor expected, to present evidence in the report as if it were actually
litigating the merits. Palacios, 46 S.W.3d at 879. The report need not marshal all of the
plaintiff’s proof, but it must include the expert’s opinion on each of the following
elements: (1) standard of care; (2) breach; and (3) causal relationship. Bowie, 79
S.W.3d at 53. There is nothing in the statute requiring the plaintiff to address the
unavoidability of the patient’s condition, negate other causes of the patient’s injury, or
that allows the trial court to engage in such a fact-specific inquiry. See TEX. CIV. PRAC.
& REM. CODE ANN. § 74.351; Palacios, 46 S.W.3d at 878–79; Bowie, 79 S.W.3d at 53.
Therefore, Dr. Rushing was not required pursuant to section 74.351 to address whether
the pressure ulcers were unavoidable or rule out or negate other possible causes of the
deceased’s pressure ulcers and ultimate death. 9
Moreover, appellees cite no authority and we find none supporting a conclusion
that an expert report filed pursuant to section 74.351 must negate other possible causes
of the patient’s injury or address whether the injury is unavoidable. Therefore, the trial
court abused its discretion when it determined that Dr. Rushing’s report is insufficient
under section 74.351 on this basis. We sustain Baker’s second issue.
B. The Adequacy of Dr. Rushing’s Report
By his third issue, Baker contends that Dr. Rushing’s report met the requirements
of section 74.351 because it provided appellees with sufficient notice of the applicable
standards of care, appellees’ breaches of those standards, and causation. Appellees
respond that “[t]he only opinion expressed by Dr. Rushing’s second report is: ‘[The
9 We note that Dr. Rushing stated in his report that the deceased’s pressure ulcers were avoidable. Moreover, if the expert believed that the injury was unavoidable or that something else caused the injury, the expert would not write a report stating that the health care provider caused the injury.
11 deceased’s] pressure ulcers on his heel and sacral area were proximate causes of his
death.’” Appellees claim that Dr Rushing does not “mention[] any other condition, factor
or conduct which he contends is a proximate cause of [the deceased’s] death.”10
Dr. Rushing indicated that based on his review of the medical records, when the
deceased entered the appellees’ facility, he did not have any pressure ulcers;
specifically, he did not have any “heel ulcers or sacral/coccyx ulcers.” Dr. Rushing
stated that the deceased developed these ulcers while he was appellees’ patient. Dr.
Rushing opined, “Based on the comprehensive assessment of the resident, the facility
must ensure that a resident who enters the facility without pressure sores does not
develop [them] unless the individual’s clinical condition demonstrates that they were
unavoidable and that a resident having pressure sores upon admission receive the
necessary care, treatment, and services to promote healing, prevent infection, and
prevent new sores from developing.” According to Dr. Rushing, the deceased’s “clinical
condition did not demonstrate that [his] pressure ulcers were unavoidable” and the
clinical condition did indicate that “he was at high risk for the development of pressure
10 Appellees appear to acknowledge that Dr. Rushing’s report addresses causation in their brief by stating, “Dr. Rushing ties his opinion with regard to the ulcers being a proximate cause of the death of [the deceased] with the conduct of [appellees] by saying that [appellees] failed to prevent the development of the pressure ulcers” and “Dr. Rushing equates his contention that the pressure ulcers were a proximate cause of [the deceased’s] death to the notion that alleged negligence by physicians was a proximate cause of [the deceased’s] death.” However, appellees claim that Dr. Rushing failed to state that they “actually caused” the ulcers or that they caused the deceased’s death. Appellees complain that Dr. Rushing merely stated that they “failed to prevent the ulcers” and “[t]his is particularly significant because the ulcers were clinically unavoidable.” However, we have already concluded that Dr. Rushing was not required to address whether the pressure ulcers were unavoidable. Moreover, in Dr. Rushing’s opinion the pressure ulcers were avoidable. Appellees direct the Court to review thirty-three pages of the deceased’s medical records. Although we have reviewed the medical records cited, we decline to rely on appellees’ own statements in the medical records to conclude that the deceased’s wounds were unavoidable because our duty is to examine Dr. Rushing’s report and to determine whether it is a good- faith effort to comply with section 74.351.
12 ulcers” due to his peripheral vascular disease, which impairs “arterial circulation to the
legs and feet.”
Dr. Rushing opined that due to the deceased’s clinical condition, the standard of
care required the nursing personnel and doctors “caring for patients like [the deceased]
with these problems” to ensure that “there is not pressure on the heels.” Dr. Rushing
stated this is best achieved by utilizing a foam rubber pad that is placed under the
patient’s lower leg. Dr. Rushing opined that in this case, the standard of care “required
that the Nursing Home and its staff provide effective pressure ulcer prevention program”
consisting of, but not limited to, “regular scheduled skin checks, documented turning
and repositioning protocol every two hours.” According to Dr. Rushing, the protocol was
not followed. Dr. Rushing stated that the standard of care required that the deceased’s
pressure ulcers be relieved. Dr. Rushing said, “The standard of care also requires that
appropriate wound documentation and wound descriptions be provided on a regular and
consistent basis so that one can assess whether the wound is getting better or worse or
just how it has responded to treatment.” Dr. Rushing stated that proper documentation
as set out in his report was not done in this case. Dr. Rushing opined that the standard
of care required medical directors of the nursing home such as Drs. McFarland and
Bunnell to ensure that the deceased had been “turned and repositioned appropriately
every two hours and that he had proper pressure relief for his heels and skin checks.”
This was not done for the deceased according to Dr. Rushing.
Dr. Rushing opined that the standard of care “requires that a long-term facility
must neither accept nor retain a resident whose needs they cannot meet” and that once
it was evident to the nursing home staff that the deceased’s “pressure ulcer on his heel
13 was getting progressively worse and that it was getting progressively worse because of
the failure to relieve the pressure on his heel. What should have been done is that the
nursing home and its staff should have notified the family and the attending physicians
that they were unable to meet [the deceased’s] needs” and the appellees should have
transferred the deceased “to a facility where a high level of care would be made
available and his needs could be met.” Dr. Rushing opined that the failure to transfer
the deceased to a facility better capable of dealing with the deceased’s wounds resulted
in “the progressive worsening of his heel pressure ulcer.” Dr. Rushing concluded that
the worsening of the pressure ulcers led to a lack of blood supply leading to necrotic or
decayed tissue, which then became infected. Dr. Rushing explained in specific detail
the process leading to decaying of the tissue which then led to infection and higher
caloric requirements. Dr. Rushing stated that because of the enlarging of the pressure
ulcer due to lack of care, the deceased’s caloric requirement increased “by as much as
80%” which meant, the deceased’s caloric requirement was “approximately 2400
calories.”
It is Dr. Rushing’s opinion that all appellees breached their respective standards
of care by not properly caring for the pressure ulcers especially in light of the fact that
the deceased suffered from conditions, such as the peripheral vascular disease, that
caused him to be particularly susceptible to avoidable complications such as pressure
ulcers. Dr. Rushing faulted the nurses and doctors for not utilizing the foam rubber pad,
for not turning or repositioning the deceased in order to relieve the pressure to his hip
and foot, for not properly documenting the wound care given, for not preventing the
ulcers in the first place, and for allowing the ulcers to become infected.
14 Dr. Rushing further determined that appellees failed to prevent the pressure ulcer
on the deceased’s heel, relieve the pressure on the deceased’s heel once the pressure
ulcer developed, and that if the appellees had relieved the pressure to the deceased’s
heel and sacral area as per the standard of care the deceased would not have
developed the pressure ulcers in the first place. According to Dr. Rushing, the
proximate cause of the deceased’s pressure ulcers was the lack of proper pressure
relief, which the appellees had a duty to do but failed to do. Dr. Rushing opined that the
deceased sacral pressure ulcer developed as a result of the appellees’ failure to turn
and reposition the deceased every two hours. Dr. Rushing believed that if the
deceased had received the proper wound care, the sacral pressure ulcers would not
have developed.
Dr. Rushing stated that in his opinion, the pressure ulcers on the deceased heel
and sacral area were the proximate causes of his death. Dr. Rushing explained:
As described in my original chapter 74 report the large sacral pressure ulcer coupled with the gangrene of the right foot due to the pressure ulcer of his heel and the above the knee amputation of his right leg all increased his caloric requirements to at least 2400 cal per day. He was unable to take enough oral nourishment to meet this requirement. He did not receive TPN or enternal [sic] feedings. His caloric requirement was simply not met and as a result he consumed his own body tissues resulting in a cachectic state with his weight ultimately being approximately 116 pounds. If he had not had the large sacral pressure ulcer and and [sic] his heel ulcer and his amputation then he would not have had this excess caloric requirement. In the absence of this excess caloric requirement he was able to consume enough calories to maintain his weight. I do agree with the diagnosis on his death certificate that malnutrition and wounds, meaning pressure ulcers, were contributing factors to his death and were proximate causes of his death due to the mechanisms described in this report and in my chapter 74 report.
15 Dr. Rushing then expressed his ultimate conclusions: “It is my opinion that the failures
outlined in this report proximately caused [the deceased’s] death. Had it not been for
these failures, [the deceased] would not have died when he did.”
Finally, Dr. Rushing believes that had the deceased been given the proper
wound care, he would not have needed an amputation of his leg, and he would not have
died due to the pressure ulcers. Dr. Rushing opined that had the foam rubber pad been
utilized, the deceased would not have developed an ulcer on his heel. Dr. Rushing also
believed that the lack of proper documentation of the wound care led to an “inability to
assess accurately whether [the] ulcer was getting better” and that it is obvious that the
ulcers became progressively worse due to the lack of proper wound care. Dr. Rushing
opined that the nursing home failed to transfer the deceased to a facility able to provide
appropriate care to prevent the development of pressure ulcers and that failure caused
the pressure ulcers to develop and worsen.
In Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013), the Texas
Supreme Court stated that it has “opined that one purpose of the report requirement is
to expeditiously weed out claims that have no merit” and “that the purpose of evaluating
expert reports is to deter frivolous claims, not to dispose of claims regardless of their
merits.” Thus, “[i]f a health care liability claim contains at least one viable liability theory,
as evidenced by an expert report meeting the statutory requirements, the claim cannot
be frivolous.” Id. “In sum, an expert report that adequately addresses at least one
pleaded liability theory satisfies the statutory requirements, and the trial court must not
dismiss in such a case.” Id. at 632.
16 Here, an examination of Dr. Rushing’s report shows that he set out the standard
of care for each appellee, how each appellee breached the standard, and he opined
regarding causation. A report that omits any of the statutory requirements cannot
constitute a good-faith effort; however, in this case, Dr. Rushing did not omit any of the
statutory requirements. The report in this case provided enough information to inform
appellees of the specific conduct that Baker called into question and to support a
conclusion that the claims have merit.
Dr. Rushing explained that appellees had a duty to prevent and properly treat the
deceased’s pressure ulcers and that they had failed to do so. Dr. Rushing further
explained that because of the lack of the proper wound care, the deceased developed
serious complications and eventually died from the lack of the proper wound care. We
conclude that Dr. Rushing’s report contained at least one viable theory of liability and
that Dr. Rushing’s report met the standards required under section 74.351. See Potts,
392 S.W.3d at 630. Thus, because Baker’s claim is not frivolous, the trial court abused
its discretion by dismissing Baker’s claim on the basis that it did not comply with section
74.351(r)(6). See Palacios, 46 S.W.3d at 877–78. We sustain Baker’s third issue.
V. STATUTE OF LIMITATIONS
By his fourth issue, Baker contends that the trial court abused its discretion in
determining that Dr. Rushing’s report was deficient because the statute of limitations
had expired. Appellees respond that the report is deficient because it “fails to indicate
that there is a valid and meritorious cause of action, insofar as the dates relied upon for
the care given reveal that the only conduct complained of occurred beyond the statute
of limitations.”
17 Section 74.351 does not include any requirement regarding the statute of
limitations. Appellees cite no authority, and we find none, allowing a defendant in a
health care liability claim to contest the sufficiency of an expert report based on the
expiration of the applicable statute of limitations. Appellees merely invite this Court to
conclude that because the statute says that “the report must provide a basis for the trial
court to conclude that the claims have merit,” the trial court may find the expert report
insufficient on the basis that the statute of limitations has expired. We decline
appellees’ invitation. Therefore, we conclude that the trial court abused its discretion by
finding Dr. Rushing’s report insufficient on the basis that the statute of limitations had
allegedly expired.11 We sustain Baker’s fourth issue.
VI. CONCLUSION
We reverse the trial court’s dismissal and remand the cause for further
proceedings consistent with this memorandum opinion.
____________________ ROGELIO VALDEZ Chief Justice
Delivered and filed the 25th day of July, 2013.
11 We make no determination regarding whether the statute of limitations had expired and note that Baker claims the statute of limitations has been tolled because the deceased was incapacitated when he died.