Marente v. Asah

486 S.W.3d 680, 2016 Tex. App. LEXIS 2290, 2016 WL 832563
CourtCourt of Appeals of Texas
DecidedMarch 4, 2016
DocketNo. 06-15-00049-CV
StatusPublished
Cited by3 cases

This text of 486 S.W.3d 680 (Marente v. Asah) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marente v. Asah, 486 S.W.3d 680, 2016 Tex. App. LEXIS 2290, 2016 WL 832563 (Tex. Ct. App. 2016).

Opinion

OPINION

Opinion by

Justice Moseley

In this medical negligence case, Christina Marente, individually and as'representative of the estate of Christian Mar-ente, deceased (Marente) appeals the trial court’s order granting the motion to dismiss her claims against Eunice' Asah, LVN, and Asah’s employer, Epic Health Services, Inc. (EPIC).1 The issue in this appeal 2-is whether the expert reports tendered on behalf-of Marente by Patti Bing-ham, R.N., and Charles D. Marable, M.D., show that they were qualified to render an opinion on the standard of care applicable to Asah. See Tex. Civ. FRAC. & Rem. Code Ann. § 74.402 (West 2011). After finding that neither expert was.qualified, the trial court sustained the objections to both reports and dismissed Marente’s claims against Asah and EPIC with prejudice. Finding no abuse of discretion 'on the part of the trial court, we affirm the judgment.

I. Factual and Procedural Background

Seventeen-year-old Christian Marente suffered from Jeune syndrome, otherwise known as asphyxiating thoracic dystrophy, which causes a small, narrow chest and variable limb shortness.3 According to the first amended petition, Christian had respiratory complications resulting in a tra-cheostomy and ventilator dependency. Asah, employed. by EPIC, was one of Christian’s, home health nurses. On September 10, 2012, Asah bathed Christian, which required disconnecting him from the ventilator. The record is unclear as to the exact mechanism, but Christian’s tracheos-tomy tube somehow became dislodged during or after the bathing process. Although Asah “made multiple attempts to place the trachea[l] tube back into place,” she was unable to do sb. Asah then used a bag valve to attempt ventilation through the trachea, called 9-1-1, and performed chest compressions until emergency medical services (EMS) arrived. When EMS arrived, Christian did not have a pulse, and he was transferred to Children’s Medical Center in Dallas. In the end, Christian had been pulseless for approximately ten to fifteen minutes. Having suffered significant brain damage, Christian -was removed from life support on September 23, 2012.

[683]*683Marente sued Asah and EPIC for medical negligence resulting in Christian’s death. Pursuant to Section 74.351 of the Texas Civil Practice and Remedies Code,4 Marente timely filed expert reports from Bingham and Marable, a neurologist.5 Asah timely objected to both reports on the basis that neither expert was qualified to render an opinion on the nursing standard of care applicable to Asah.6 The trial court agreed with Asah, but afforded Mar-ente thirty additional days in which to cure the reports’ deficiencies. Within that thirty-day period, Marente served amended expert reports prepared by Bingham and Marable. Asah objected to the amended reports, still claiming that neither expert was qualified to opine on the standard of care applicable to Asah.

After a hearing on the defendants’ second motion to. dismiss, the trial court determined that'neither expert was qualified to opine on the standard of care applicable .to Asah.7

[684]*684II. Standard of Review

We review a trial court’s decision on a motion to dismiss under Section 74.351 for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001). An abuse of discretion occurs when the trial court acts in an unreasonable or arbitrary manner without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). A trial court will be deemed to have acted arbitrarily and unreasonably if the trial court could have reached only one decision, yet reached a different one. See Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex.App.—Texarkana 2003, no pet.).

III, Applicable Law and Analysis

Section 74,351(r)(5) of the Texas Civil Practice and Remedies Code provides that an “expert” in a health care liability claim is:

(B) with respect to a person giving opinion testimony regarding whether a health care provider departed from accepted standards of health care, an expert qualified to testify under the requirements of Section 74.402;
(C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to. render opinions on such causal relationship under the Texas Rules of Evidence.

Tex. Civ. PRAC.- & Rem. Code Ann. § 74.351(r)(5)(B), (C) (West Supp.2015). Section 74.402 states the following, in pertinent part:

(b) In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person:
(1) is practicing health care in afield of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.
(c) 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 certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial [685]*685training or experience, in the area of health care relevant to the claim; and (2) is actively practicing health care in rendering health care services relevant to the claim.

Tex. Civ. PRAC. & Rem. Code Ann. § 74.402(b), (c) (West 2011). Moreover, Section 74.402(a) describes the following as “practicing health care”:

(1) training health care providers in the same field as the defendant health care provider at an accredited education institutional; or
(2) serving as' a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider. ’

Tex. Civ. Peac. & Rem. Code Ann. § 74.402(a) (West 2011).

A. Marente’s Claimp

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486 S.W.3d 680, 2016 Tex. App. LEXIS 2290, 2016 WL 832563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marente-v-asah-texapp-2016.