Jeffna McKinney, Individually and as of Sid Talley's Estate v. Lee Bivins Foundation D/B/A Bivins Pointe and Betty Bivins Childers Foundation D/B/A Bivins Pointe

• Court: Court of Appeals of Texas
• Decided: June 25, 2021
• Docket: 07-20-00273-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-20-00273-CV ________________________

JEFFNA MCKINNEY, INDIVIDUALLY AND AS EXECUTRIX OF SID TALLEY’S ESTATE, APPELLANT

V.

LEE BIVINS FOUNDATION D/B/A BIVINS POINTE AND BETTY BIVINS CHILDERS FOUNDATION D/B/A BIVINS POINTE, APPELLEES

On Appeal from the 251st District Court Potter County, Texas Trial Court No. 109,178-C-CV; Honorable Ana Estevez, Presiding

June 25, 2021

MEMORANDUM OPINION

Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Appellant, Jeffna McKinney, Individually and as Executrix of the Estate of Sid

Talley (hereinafter “McKinney”) brings this appeal to challenge the trial court’s order

granting a motion to dismiss filed by Appellees, Lee Bivins Foundation d/b/a Bivins Pointe

and Betty Bivins Childers Foundation d/b/a Bivins Pointe (hereinafter “Bivins Pointe”), in her health care personal injury liability claim, based on McKinney’s failure to file a qualified

expert report. Through a single issue, McKinney argues the trial court abused its

discretion when it dismissed her claim without holding a hearing. For the reasons stated,

we will affirm the trial court’s order.

BACKGROUND

This is an appeal involving a healthcare liability claim governed by chapter 74 of

the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 74.001

et seq. (West 2020). McKinney’s father, Sid Talley, was a resident at a Bivins Pointe

senior healthcare facility. In November 2017, a nurse employed by the facility negligently

inserted a foley catheter into Talley’s body. The catheter was inflated in an improper

position, causing injury.

McKinney filed a healthcare liability claim based on this incident. She filed and

served an expert report in an effort to comply with the requirements of chapter 74. In

doing so she provided the expert report and curriculum vitae of Marshall Dawkins, MSN,

APRN, FNP-BC. Mr. Dawkins is a nurse. Bivins Pointe objected to McKinney’s expert

report, arguing that Marshall was not qualified to opine on causation because he is not a

physician. Under chapter 74, physicians or persons otherwise qualified to render an

opinion under the Rules of Evidence on the causal relationship between the injuries

sustained and the negligent conduct alleged are qualified to opine as to causation. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.403. Accordingly, following the expiration of the

statutory 120-day period, Bivins Pointe filed a motion to dismiss McKinney’s suit on this

basis. The trial court took the matter under consideration by submission, and three days

later granted the motion to dismiss.

2 Thereafter, McKinney filed a motion for new trial, acknowledging the expert report

was deficient with regard to causation but arguing she was entitled an opportunity to cure

that deficiency. She filed the supplemental expert report of Dr. Keith D. Bjork, M.D., in an

attempt to cure the deficiency of her initial expert report. Her motion for new trial was

overruled by operation of law, and she has chosen to pursue this appeal.

ANALYSIS

STANDARD OF REVIEW AND APPLICABLE LAW

We review a trial court’s decision regarding a motion to dismiss under chapter 74

of the Texas Civil Practice and Remedies Code under an abuse of discretion standard.

Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (citation omitted).

In reviewing the trial court’s decision, we do not substitute our judgment for that of the

trial court in reviewing factual matters or matters committed solely to the trial court’s

discretion. In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 686, 698 (Tex. 2015) (citations

omitted). Under that standard “[a] trial court abuses its discretion if it acts in an arbitrary

or unreasonable manner without reference to any guiding rules or principles.” Blevins v.

Emad Mikhail Bishai, No. 09-16-00071-CV, 2017 Tex. App. LEXIS 3524, at *17-18 (Tex.

App.—Beaumont April 20, 2017, no pet.) (mem. op.). A trial court also abuses its

discretion if it fails to analyze or apply the law correctly. Blevins, 2017 Tex. App. LEXIS

3524, at *18 (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004);

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (“a clear failure by the trial court to

analyze or apply the law correctly will constitute an abuse of discretion”)). In exercising

its discretion, it is binding on the trial court to review the reports, sort out their content,

resolve any inconsistencies, and decide whether the reports demonstrate a good faith

3 effort to show that the plaintiff’s claims have merit. Van Ness, 461 S.W.3d at 144. See

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

FAILURE TO HOLD A HEARING PURSUANT TO CHAPTER 74

Via her sole appellate issue, McKinney argues the trial court abused its discretion

by dismissing her healthcare liability claim without holding a hearing or notifying her that

the matter was set for hearing. She contends chapter 74 requires an actual temporal

hearing before dismissing such a suit on the basis of a deficient expert report. We

disagree.

Section 74.351(l) provides that “[a] court shall grant a motion challenging the

adequacy of an expert report only if it appears to the court, after hearing, that the report

does not represent an objective good faith effort to comply with the definition of an expert

report in Subsection (r)(6).” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l). We find, as

have other courts, that the statute’s use of the word “hearing” does not require the trial

court to hold an actual hearing, attended by the parties. Instead, the trial court may decide

the matter on written submission, where all parties are represented solely by the

pleadings on file. Blevins, 2017 Tex. App. LEXIS 3524, at *22-24 (citing Jackson v.

Reardon, 14 S.W.3d 816, 819 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (stating that

“[a]rticle 4590i [the predecessor to chapter 74] does not expressly require an oral hearing

on a motion to dismiss”). See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357,

359 (Tex. 1998) (discussing the necessity of an in-person oral hearing in the context of a

motion for summary judgment, saying “[u]nless required by the express language or the

context of the particular rule, the term ‘hearing’ does not necessarily contemplate either

a personal appearance before the court or an oral presentation to the court”).

4 Courts have held that as a general rule, “an adjudication based on written materials

alone is sufficient.” Blevins, 2017 Tex. App. LEXIS 3524, at *23 (citing Jackson, 14

S.W.3d at 819 (concluding the court conducted the statutorily-required hearing “based on

written materials alone . . .”); Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d

777, 781 (Tex. 2005) (noting that “[m]any pretrial ‘hearings’ take place entirely on paper”);

Norris v. Tenet Houston Health Sys., No. 14-04-01029-CV, 2006 Tex. App. LEXIS 4600,

at *13-14 (Tex. App.—Houston [14th Dist.] May 30, 2006, no pet.) (mem. op.) (a motion

to dismiss pursuant to former Medical Liability and Insurance Improvement Act may be

decided on written materials alone); Mocega v. Urquhart, 79 S.W.3d 61, 64 (Tex. App.—

Houston [14th Dist.] 2002, pet. denied) (holding that a motion to dismiss pursuant to article

4590i may be properly “heard” by submission)). We note also that any oral argument or

testimony would fall outside the four corners of the expert report. Blevins, 2017 Tex. App.

LEXIS 3524, at *24 (citations omitted). We thus conclude the trial court did not err in

dismissing McKinney’s claim without holding an oral hearing or providing notice thereof.

See Sampson v. E. Tex. Med. Ctr. Tyler, No. 12-17-00170-CV, 2018 Tex. App. LEXIS

561, at *10-11 (Tex. App.—Tyler Jan. 18, 2018, no pet.) (mem. op.) (reaching same

conclusion). Moreover, even assuming an oral hearing was required, we cannot find the

trial court abused its discretion in dismissing McKinney’s claim.

Chapter 74 of the Texas Civil Practice and Remedies Code requires healthcare

liability claimants to serve an expert report on each defendant not later than 120 days

after that defendant’s answer is filed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a).

Under chapter 74, a defendant is entitled to dismissal of a healthcare liability claim if,

within 120 days of filing suit, the defendant is not served with an expert report showing

5 the claim has merit. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a), (b); Post Acute

Med., L.L.C. v. Montgomery, 514 S.W.3d 889, 892 (Tex. App.—Austin 2017, no pet.).

Chapter 74 has specific requirements for an adequate expert report and requires “an

objective good faith effort” be made to comply with the requirements, but it also authorizes

the trial court to grant one thirty-day extension for the claimant to cure deficiencies in an

otherwise timely filed expert report. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c), (l);

Post Acute Med., L.L.C., 514 S.W.3d at 892. “The trial court should err on the side of

granting the additional time and must grant it if the deficiencies are curable.” Post Acute

Med., L.L.C., 514 S.W.3d at 892 (footnotes omitted).

Chapter 74 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 ANN. § 74.351(r)(6).

To constitute a “good faith effort,” as the Texas Supreme Court has explained, the

report must include the expert’s opinion on “each of the three main elements: standard of

care, breach, and causation,” and must provide enough information to fulfill two purposes

with respect to each element: (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. Gonsoulin v. Zamarripa, No. 13-18-00483-CV, 2020

Tex. App. LEXIS 1364, at *13-14 (Tex. App.—Corpus Christi-Edinburg, Feb. 20, 2020, no

pet.) (mem. op.) (citing Jelinek v. Casas, 328 S.W.3d 526, 538-40 & n.9 (Tex. 2010); Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex. 2001)). A

6 plaintiff does not need to present all of her proof or expert testimony in a form that would

be admissible at trial but is required to have the expert “explain the basis for his

statements to link his conclusions to the facts” and not merely state conclusions. Jelinek,

328 S.W.3d at 539-40. The Supreme Court held that “[a] report that merely states the

expert’s conclusions about the standard of care, breach, and causation” does not fulfill

the two purposes of a good-faith effort. Palacios, 46 S.W.3d at 879.

McKinney argues that the expert report was arguably deficient in only one respect,

i.e., causation, because her expert, Dawkins, was a nurse and not a physician as required

under the appliable law. She argues, however, that the trial court should have had before

it the benefit of all of the information, including her supplemental expert report by a

physician, before it dismissed her claim. She argues she was denied an opportunity to

be heard and an opportunity to cure the alleged defect in her expert report. As such, she

contends, it “would be an injustice to deny a righteous medical negligence case based

upon a statutorily-curable deficient element.” McKinney states in her appellate brief that

she “fully expected, after hearing, that the trial court would grant the 30-day extension

provided by Chapter 74 to allow [McKinney] to correct the deficient element. But that

hearing never occurred. In fact, [McKinney] had (and has) a physician prepared to opine

on the one deficient element, causation.”

As noted above, the trial court is permitted to conduct the statutorily required

hearing based on the written materials alone. The record here indicates the trial court did

just that. While McKinney appears to have relied on the trial court’s granting of an

7 extension, 1 the trial court was not required to do so and, by its failure to grant such an

extension, implicitly indicated it did not believe the information before it warranted any

such extension. We cannot find the trial court abused its discretion on that basis.

Furthermore, we must agree with Bivins Pointe that McKinney’s supplemental

expert report by Dr. Bjork failed to cure the deficiency in her initial report. Among other

reasons, the supplemental report does not cure the deficiency because McKinney failed

to show Dr. Bjork was qualified to opine on urethral injuries of the nature sustained by Sid

Talley. See Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996) (citations omitted) (the

qualification of a witness as an expert is within the trial court’s discretion). Dr. Bjork’s

expert report and attached curriculum vitae show Dr. Bjork is a doctor of orthopedic

surgery. See In re Stacy K. Boone, P.A., 223 S.W.3d 398, 404 (Tex. App.—Amarillo

2006, orig. proceeding) (the determination of qualifications to provide an expert report

“must be made on the basis of the contents of the report and his curriculum vitae”). His

education and experience show his expertise is in the area of orthopedics, including

sports medicine. Nothing in the material provided in the supplemental report shows Dr.

Bjork has any expertise in urethral injuries such as would qualify him to render an opinion

1 McKinney cites In re Buster, 275 S.W.3d 475, 477 (Tex. 2008), to support her proposition that the trial court should not have granted Bivins Pointe’s motion to dismiss without a hearing because, in her view, her suit is not frivolous and had an oral hearing been held, the court would have granted the 30-day continuance. The Court in In re Buster determined the trial court did not err in granting the continuance because the report submitted constituted a good-faith effort. If the same had occurred here, we would likely conclude the trial court did not err in granting the continuance. However, those are not the circumstances before us, and we cannot conclude the trial court abused its discretion in granting the motion to dismiss without granting the continuance when nothing in the record indicates the court acted in an arbitrary or unreasonable manner without reference to any guiding rules or principles or that it applied the law incorrectly.

8 as to causation in this matter. 2 See Broders, 924 S.W.2d at 152-53 (discussing realities

of medical specialization and requirements for expert physicians). As such, McKinney

has not shown that Dr. Bjork “possesses special knowledge as to the very matter on which

he proposes to give an opinion.” Id. (citations omitted). Therefore, we do not find any

abuse of discretion in the trial court’s ruling. Accordingly, we resolve McKinney’s issue

against her.

CONCLUSION

Having overruled McKinney’s sole appellate issue, we affirm the order of the trial

court.

Patrick A. Pirtle Justice

2 In her reply brief, McKinney states the “Bjork report is particularly instructive because it recognizes

that the treating urologist (Dr. Virgil Pate) of Appellant’s father also recognized Appellees’ negligence.” This assertion in the report is insufficient to overcome the deficiency as Bjork, the physician who authored the supplemental expert report, still does not possess the requisite special knowledge as to the matter on which he was asked to opine.