In Re Tenet Hospitals Ltd.

116 S.W.3d 821, 2003 WL 22023654

• Court: Court of Appeals of Texas
• Decided: October 1, 2003
• Docket: 08-03-00069-CV
• Status: Published

Opinions

OPINION

ANN CRAWFORD McCLURE, Justice.

In this mandamus proceeding, Tenet Hospitals Limited complains of the trial court’s denial of its motion to dismiss a medical malpractice suit. The motion challenged the sufficiency of two expert reports filed by the plaintiffs below which failed to address causation as required by statute. Finding that the reports were filed in good faith, the trial court denied the motion to dismiss. We conditionally grant relief.

FACTUAL SUMMARY

Around midnight on March 4, 2000, Raquel Arriola was admitted to the emergency room at Sierra Medical Center. She complained of pleuritic chest pain, chills, headache, diarrhea, and nausea. Her medical history revealed systemic lupus erythematosus and spleen removal. Dr. Patricia Rowley ordered a chest x-ray, ECG, and certain laboratory tests. Arrio-la decompensated and arrested at 3:42 a.m. She was resuscitated, but arrested again at 5:18 a.m. and could not be revived.

Arriola’s surviving children brought a medical malpractice suit against Dr. Row-ley and the Hospital. With regard to Dr. Rowley, the plaintiffs alleged that she failed to properly and timely diagnose Ar-riola, failed to order continuous monitoring of her oxygen saturation level, and failed to order the administration of antibiotics. The hospital was purportedly negligent because no action was taken to address the abnormal ECG results, electrolyte imbalance, mild respiratory desaturation, or low white blood cell count and the staff did not monitor the patient’s vital signs or her cardiac condition.

The plaintiffs timely filed two expert reports as required by the Medical Liability and Insurance Improvement Act. Tex. Rev. Civ.Stat.Ann. art. 4590i, § 13.01(d)(Vernon Supp.2003). In the first, Margaret Bowers, R.N., explained that the requisite standard of care requires a nurse to administer medications such as antibiotics in accordance with the orders and instructions of the physician(s) directing the medical care of the patient. In her opinion, the nurses attending Arrio-la breached the standard of care by failing to administer antibiotic medications as ordered. In the second expert report, Dr. Paul K. Bronston opined that the applicable standard of care required continuous monitoring of the heart and vital signs and that the Hospital had breached the standard and violated its own chest pain protocol.

THE STATUTE

The Medical Liability and Insurance Improvement Act (the Act) was enacted by the Texas Legislature to curtail frivolous claims. Hart v. Wright, 16 S.W.3d 872, 876 (Tex.App.-Fort Worth 2000, pet. denied); Horsley-Layman v. Angeles, 968 S.W.2d 533, 537 (Tex.App.-Texarkana 1998, no pet.). In order to encourage the screening of medical malpractice claims by an expert prior to filing, the Act requires a plaintiff to provide each defending physician or health care provider with one or more expert reports relating to liability and causation. Wood v. Tice, 988 S.W.2d 829, 830 (Tex.App.-San Antonio 1999, pet. denied); see Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(d). The expert report, along with a curriculum vitae of each expert, must be furnished to the defendant not later than the 180th day after the date on which a health care liability claim is filed or the last day of any extended period as permitted under the statute. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(d). If a plaintiff fails to comply with this provision and the defendant files a motion seeking sanctions pursuant to Section 13.01(e), a trial court has no discretion and must enter an order dismissing the case with prejudice. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(e)(3); Hart, 16 S.W.3d at 876. Where an expert report is tendered, the defendant may challenge the adequacy of the report. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(0; Hart, 16 S.W.3d at 876. The trial court is authorized to grant a motion to dismiss “only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section.” Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(l). An expert report is defined as a fair summary of the expert’s opinions regarding: (1) applicable standards of care, (2) the manner in which the care rendered by the physician or health care provider failed to meet the standards, and (3) the causal relationship between that failure and the injury, harm, or damages claimed. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(r)(6).

STANDARD OF REVIEW

We apply an abuse of discretion standard when reviewing a trial court’s ruling on a dismissal under Section 13.01(e)(3). American Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Hart, 16 S.W.3d at 875; Tibbetts v. Gagliardi, 2 S.W.3d 659, 663 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)(orig. proceeding). A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or reference to guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)(orig. proceeding). An appellate court rarely interferes with the trial court’s exercise of discretion and we may not substitute our judgment for that of the trial court. Walker, 827 S.W.2d at 839-40. The relator must therefore establish that the trial court could reasonably have reached only one decision. Id. Even if we would have decided the issue differently, we cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Id. With respect to a trial court’s determination of the legal principles controlling its ruling, the standard is much less deferential. A trial court has no discretion in determining what the law is or applying the law to the facts. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840.

An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Walker, 827 S.W.2d at 840. Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989).

INADEQUACY OF THE EXPERT REPORTS

The sole issue for the trial court was whether the reports represented a good faith effort to comply with the statutory definition of an expert report. Palacios, 46 S.W.3d at 875. Because the Act focuses on the contents of the report, the only information relevant to the inquiry is contained within the four corners of the document. Id. The trial court should look no further than the report itself in determining whether it constitutes a fair summary of the expert’s opinions about the applicable standard of care, the manner in which the care provided failed to meet that standard, and the causal relationship between that failure and the claimed injury. Id.

We begin with pertinent excerpts of Nurse Bowers’ report:

• I am familiar with the nursing standard of care to be applied to nurses who are involved in the treatment of patients in a hospital emergency department. I am also familiar with the ordinary practices and procedures followed by the nurses and others to prepare medical records.

• The standard of care requires a nurse to administer medications such as antibiotics in accordance with the orders and instructions of the physician(s) directing the medical care of the patient.

• I have reviewed medical records of Sierra Medical Center for the treatment of Raquel Arriola for the March 4, 2000 admission. Based upon the review, it is my opinion that the nurses involved in the care of Ms. Arriola breached the standard of care for nurses for failing to administer antibiotic medications as ordered.

• It appears from my review of the emergency department’s records that Dr. Rowley ordered the administration of antibiotics after an order given for Phenergan noted on the chart at 1:45 a.m. As for the administration of such antibiotics, however, there are no entries readily visible on the medical chart or billing records that show that the nurses fulfilled the physician’s orders.

• In my professional opinion, the failure of each nurse treating Ms. Arriola to administer antibiotics as ordered by the treating physician breached the applicable standard of nursing care.

The expert report of Dr. Bronston provided:

• Ms. Arriola was a 58 years old Latina female with a history of systemic lupus erythematosus, Sjogren Syndrome and status post splenectomy in 1992. She had been on chronic Prednisone and Pla-quenil therapy at the time of her visit to the Sierra Medical Center Emergency Department in El Paso, Texas on 3/4/00 at 23:30. She was seen by Dr. Patricia Rowley at 00:30 on 3/5/00.

• She decompensated and arrested at about 03:42 on 3/5/00. She was resuscitated, place on Dopamine for her hypo-tension and admitted to the ICU by Dr. Jesus Gomez. While in the ICU she arrested again at 05:18 and pronounced dead at 05:42.

• There were a number of violations of the standard of care in her care and treatment:

Antibiotics were ordered but she never received them;

She was not continuously monitored by a pulse oxymeter;

There was no cardiac monitoring which should have been instituted at the beginning of her admission; this was a violation of the standard of care and of Sierra Medical Center’s own Chest Pain protocol;

Her vital sign needed to be monitored more frequently;

She should have been administered IV Sodium Bicarbonate.

Dr. Bronston concluded that the patient needed to have been closely monitored regarding her vital signs, her acidosis, and her increasing hypoxia and restlessness. Timely antibiotics should have been administered and the acidosis and hypoxia should have been corrected. While these reports addressed the manner in which the doctor and hospital staff allegedly breached the standard of care, they wholly failed to address the causal relationship between the breach and Arriola’s death. We have previously determined that although the words “cause” or “causation” do not necessarily have to be used, some substituted word, phrase, or reference is certainly required. Gonzalez v. El Paso Hospital District, 68 S.W.3d 712, 716-17 (Tex.App.-El Paso 2001, no pet.).

We recognize that the expert report must represent only a good faith effort to provide a fair summary of the expert’s opinions. A report need not marshal all the plaintiff’s proof, but it must include the expert’s opinion on each of the elements identified in the statute. Palacios, 46 S.W.3d at 878, 879; Hart, 16 S.W.3d at 877. In detailing the expert’s opinions on each of those elements, the report must provide enough information to fulfill two purposes if it is to constitute a good faith effort. First, the report must inform the defendant of the specific conduct the plaintiff has called into question. Second, and equally important, the report must provide a basis for the trial court to conclude that the claims have merit. Wood, 988 S.W.2d at 830. A report that merely states the expert’s conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Moreover, a report cannot constitute a good faith effort if it omits any of the statutory requirements. Palacios, 46 S.W.3d at 879; see, e.g., Hart, 16 S.W.3d at 877, (holding that a report was inadequate because it stated that the patient had a heart attack and the doctor breached the standard of care, without describing the standard of care); Wood, 988 S.W.2d at 831-32 (holding that an expert report did not meet the statutory requirements because it did not name the defendants, state how the defendants breached the standard of care, demonstrate causation and damages, or include a curriculum vitae). Because both of the expert reports at issue here failed to address causation, there can be no finding of a good faith effort. Consequently, the trial court abused its discretion in denying the Hospital’s motion to dismiss.

INADEQUATE REMEDY AT LAW

The Hospital contends that it has no adequate remedy at law because a post-trial appeal cannot remedy the deprivation of a statutory due process right to pretrial dismissal with prejudice. In support of its argument, it directs us to In re Collom & Carney Clinic Ass’n, 62 S.W.3d 924 (Tex.App.-Texarkana 2001, original proceeding). There the court found mandamus proper because the Act requires dismissal where a proper expert report is not timely filed. We agree, as has our sister court in Amarillo. See In re Rodriguez, 99 S.W.3d 825, 828 (Tex.App.-Amarillo 2003)(orig. proceeding); In re Morris, 93 S.W.3d 388, 390 (Tex.App.-Amarillo 2002)(orig. proceeding). Where a report totally omits one of the three required elements, the trial court has a ministerial duty to dismiss the lawsuit with prejudice and has no discretion to do otherwise. Collom & Carney, 62 S.W.3d at 928.

We pause briefly to address the issue of the plaintiffs’ ability to seek an extension of time to comply with the Act. See Tex. Rev.Civ.Stat.Ann. art. 3590i, § 13.01(g). The trial court’s order found “there was no accident or mistake in filing the adequate reports.” On the record, he noted:

Well, my general feeling of it is, I don’t think there is an accident or mistake here. I mean, I know you spent a lot of time talking about it, but I think their position is much clearer. They think the report is adequate. I don’t see it as an accident or mistake issue. I see it as is the report adequate or not. If it is, then they can proceed. If it isn’t, then it’s over, you know.

We agree with his assessment and conditionally grant relief. The writ will issue only if the trial court fails to enter an order of dismissal with prejudice.

WITTIG, J. (sitting by assignment).