Maria Zamarripa, as Temporary Guardian of the Estates of R. F. R. and R. J. R., Minors, and Olga Flores, as Temporary Administrator of the Estate of Yolanda Iris Flores v. Bay Area Health Care Group, Ltd. D/B/A Corpus Christi Medical Center, Hidalgo County EMS, and Hidalgo County Emergency Medical Service Foundation

• Court: Court of Appeals of Texas
• Decided: July 6, 2015
• Docket: 13-15-00024-CV
• Status: Published

Opinion

ACCEPTED 13-15-00024-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/6/2015 3:52:31 PM CECILE FOY GSANGER CLERK

IN THE THIRTEENTH COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS NO. 13-15-00024-CV 7/6/2015 3:52:31 PM CECILE FOY GSANGER Clerk

MARIA ZAMARRIPA, AS GUARDIAN OF THE ESTATES OF R.F.R. AND R.J.R., MINORS, AND OLGA FLORES, AS ADMINISTRATOR OF THE ESTATE OF YOLANDA IRIS FLORES, Appellants

v.

BAY AREA HEALTH CARE GROUP, LTD. D/B/A CORPUS CHRISTI MEDICAL CENTER, HIDALGO COUNTY EMS, AND HIDALGO COUNTY EMERGENCY MEDICAL SERVICE FOUNDATION, Appellees.

APPELLANTS MARIA ZAMARRIPA AS GUARDIAN OF R.F.R. AND R.J.R., MINORS, AND OLGA FLORES, AS ADMINISTRATOR OF THE ESTATE OF YOLANDA FLORES REPLY TO BRIEF OF APPELLEE BAY AREA HEALTH CARE GROUP, LTD. D/B/A CORPUS CHRISTI MEDICAL CENTER

WEST, WEBB, ALLBRITTON & GENTRY, P.C. Gaines West State Bar No. 21197500 Email: gaines.west@westwebblaw.com Jennifer D. Jasper State Bar No.: 24027026 E-mail: jennifer.jasper@westwebblaw.com Donald Delgado State Bar No. 24065139 E-mail: donald.delgado@westwebblaw.com 1515 Emerald Plaza College Station, Texas 77845 979.694.7000 ~ Telephone 979.694.8000 ~ Facsimile

COUNSEL FOR APPELLANTS

i TABLE OF CONTENTS

Table of Contents .................................................................................................... ii

Table of Authorities ................................................................................................. iii

Reply Point One: Nurse Spears is qualified to opine on the applicable standard of care and CCMC’s breach......................................................... 1

A. CCMC has conceded that 74.402(b)(1) does not apply ................................ 1

B. CCMC waived any challenge under section 74.402(b)(2) and (b)(3) ........... 1

Reply Point Two: Appellants’ expert reports sufficiently connect CCMC’s breach of the standard of care and Yolanda’s injuries and death ............... 6

A. Nurse Spears adequately stated the standard of care and breach .................. 6

B. Nurse Spears’s reports do not impose a duty on CCMC that violates Texas Law ..................................................................................................... 9

Reply Point Three: Dr. Harlass’s report constitutes a good faith effort to comply with section 74.351 ......................................................................... 9

A. Dr. Harlass’s report offers a causation opinion against CCMC that is not conclusory ......................................................................................... 10

B. Dr. Harlass is qualified to render causation opinion against CCMC .......... 12

Reply Point Four: Alternatively, Appellants are entitled to amend reports ......... 14

Prayer.......................................................................................................................15

Certificate of Compliance........................................................................................16

Certificate of Service...............................................................................................17

ii

TABLE OF AUTHORITIES

CASES

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,.............................................14 46 S.W.3d 873 (Tex. 2001)

Bowie Mem’l Hosp. v. Wright, ...................................................................................8 79 S.W.3d 48 (Tex. 2002)

Sus Spohn Health Sys. Corp. v. Castro, ...................................................................15 No. 13-13-00302-CV, 2013 WL 6576041 (Tex. App.—Corpus Christi Dec. 12, 2013, no pet.)

Cornejo v. Hilgers, ........................................................................................... 10, 12 446 S.W.3d 113 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)

Costello v. Christus Santa Rosa Health Care Corp., .............................................11 141 S.W.3d 245 (Tex. App.—San Antonio 2004, no pet.)

Fortner v. Hosp. of the Sw., LLP, ............................................................................12 399 S.W.3d 373 (Tex. App.—Dallas 2013, no pet.)

Gen. Chem. Corp. v. De La Lastra, ..........................................................................2 852 S.W.2d 916 (Tex. 1993)

Group v. Vicento, .......................................................................................................3 164 S.W.3d 724 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)

Hillery v. Kyle, .........................................................................................................13 371 S.W.3d 482 (Tex. App.—Houston [1st Dist.] 2012, no pet.)

Jelinek v. Casas, .......................................................................................................11 328 S.W.3d 526 (Tex. 2010)

Kelly v. Rendon, .........................................................................................................6 255 S.W.3d 665 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

Mack Trucks, Inc. v. Tamez, ............................................................................. 1, 2, 6 206 S.W.3d 572 (Tex. 2006) iii

Rittger v. Danos, ............................................................................................... 13, 14 332 S.W.3d 550 (Tex. App.—Houston [1st Dist.] 2009, no pet.)

Salais v. Tex. Dept. Aging & Disability Serv’s., ....................................................8, 9 323 S.W.3d 527 (Tex. App.—Waco 2010, pet. denied)

Scoresby v. Santillan, .................................................................................. 10, 11, 15 346 S.W.3d 546 (Tex. 2011)

Tawa v. Gentry, ........................................................................................................13 No. 01–12–00407–CV, 2013 WL 1694869 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.)

Tovar v. Methodist Healthcare Sys. of San Antonio, Ltd., LLP.................................8 185 S.W.3d 65 (Tex. App.—San Antonio 2005, pet. denied)

STATUTES

TEX. ADMIN. CODE ANN. § 217.11(c) ................. ................................................9, 10

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351.................................................9, 10

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6)...............................................10

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402……................................................6

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1).............................................1, 2

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(2).............................1, 2, 3, 4, 5, 6

TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(3)................................ 2, 3, 4, 5, 6

iv

TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

Appellants, Maria Zamarripa, as Guardian of the Estates of R.F.R. and

R.J.R., minors, and Olga Flores, as Administrator of the Estate of Yolanda Iris

Flores (“Appellants”), file this Reply to Appellee Bay Area Health Care Group,

Ltd. d/b/a Corpus Christi Medical Center’s (“CCMC”) Brief, and would respond as

follows:

REPLY POINT ONE: Nurse Spears is qualified to opine on the applicable standard of care and CCMC’s breach.

A. CCMC has conceded that section 74.402(b)(1) does not apply

Section 74.402(b)(1) does not apply to Nurse Spears, because that section

only applies “if the defendant is an individual.” TEX. CIV. PRAC. & REM. CODE

ANN. § 74.402(b)(2) (West). On appeal, CCMC does not dispute that

74.402(b)(1) only applies to individual defendants, and not a hospital. CCMC

Appellee’s Brief at 18-19. Accordingly, 74.402(b)(1) does not apply in this case,

as CCMC is not an individual. To the extent the trial court granted CCMC’s

motion to dismiss based on Nurse Spears’s failure to meet the requirements of

section 74.402(b)(1), the court abused its discretion.

B. CCMC waived any challenge under section 74.402(b)(2) and (b)(3)

Texas generally requires parties to properly raise an issue to the trial court in

order to have that issue reviewed on appeal. Mack Trucks, Inc. v. Tamez, 206

S.W.3d 572, 577 (Tex. 2006). Additionally, when a party does not raise an issue

of controlling law to the trial court, the ability to raise the issue on appeal is

waived. Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993).

For the first time on appeal, CCMC contends Nurse Spears is unqualified

under subsections 74.402(b)(2) and (b)(3). CCMC Appellee’s Brief at 7. In the

trial court, CCMC’s motion to dismiss claimed only that Nurse Spears was

unqualified under 74.402(b)(1). CR 237, n.22. Because CCMC did not properly

raise the issues of 74.402(b)(2) and (b)(3) in their motion to dismiss, appellate

review is limited to the issue of Nurse Spears’s qualifications solely under

74.402(b)(1), which were addressed above. See id.1

For the sake of argument, even if this Court were to find that CCMC

adequately objected in the trial court to Nurse Spears’s qualifications under

sections 74.402(b)(2) and 74.402(b)(3), CCMC’s arguments that Nurse Spears is

not qualified under these subsections fails.

Specifically, CCMC contends Nurse Spears is unqualified under section

74.402(b)(2) to testify as an expert on the standard of care for a hospital’s labor

and delivery department presented with the circumstances at issue in this case.

1 In their Appellee’s Brief, CCMC claims that in fact they did raise subsection (b)(2) and (b)(3) in the trial court, but all they cite in support of this statement is their generic reference to 74.402 in the motion to dismiss. CCMC Appellee’s Brief at 19, n.9. Considering the motion to dismiss’s footnote 22 (which states in full subsection (b)(1)) and complete failure to make any substantive arguments regarding (b)(2) and (b)(3), a mere reference to 74.402 itself does not preserve these arguments for appellate review. See Tamez, 206 S.W.3d at 577. 2

CCMC Appellee’s Brief at 16-18. CCMC also asserts Nurse Spears does not

satisfy Section 74.402(b)(3) because she was not actively practicing health care in

a relevant field at the time of the incident or at the time she authored her reports.

CCMC Appellee Brief at 16-18. Both of these arguments are misplaced.

Section 74.402(b)(2) requires that Nurse Spears “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.” TEX. CIV. PRAC. & REM.

Code Ann. § 74.402(b)(2); see Group v. Vicento, 164 S.W.3d 724, 734 (Tex.

App.—Houston [14th Dist.] 2005, pet. denied) (holding doctor’s own statement in

his report that he has knowledge of accepted standard of care for the injury or

illness at issue satisfies section 74.402(b)(2)). The illness, injury or condition

involved in this claim is placenta accreta and pre-term labor. Nurse Spears’s

curriculum vitae and reports plainly establish that she has knowledge of accepted

standards of care for the care and treatment of placenta accreta and pre term labor.

CR 215.

Furthermore, this case specifically involves the issue of transferring a patient

with placenta accrete and in pre-term labor, to another facility for treatment.

Along these lines, Nurse Spears’s qualifications include:

In my nursing experience in the L&D Department and in the ER, I have provided instructions to EMS/transfer personnel’s inquiries about whether or not to divert from the receiving hospital in a patient transfer, based on the reported signs and symptoms given by the EMS 3

personnel/EMTS. I am familiar with the standard of care for L&D and ER staff for processing such inquiries and the response to be given. I have also practiced as an EMT, and am familiar with the information that EMT provide to receiving hospitals in transfer when calls are made about seeking instructions about possible diversion to a different medical facility.

CR 218.

In light of this experience, CCMC cannot complain about any failure to

satisfy 74.402(b)(2). This is evident in the specific (and only) argument CCMC

makes on this point: “the vagueness in Nurse Spears’ reports regarding the

standard of care applicable to CCMC … indicates she does not have knowledge of

the standard of care applicable to CCMC for the circumstances presented in this

case.” CCMC Appellee’s Brief at 16.

Thus, rather than claiming she lacks any substantive qualifications to render

opinions in this case, CCMC raises a complaint about her reports, apparently

trying to boot-strap its complaint about her reports into a complaint about her

qualifications. But such a complaint about her reports cannot render Nurse Spears

unqualified.

The “knowledge” requirement of subsection (b)(2) is not determined based

on the expert’s own recitation of the standard of care in her report and CCMC fails

to cite to any authority for this errant proposition. Rather, an expert report satisfies

the requirements of section 74.402(b)(2) if the expert is able to show that she has

“knowledge of accepted standards of care for health care providers for the 4

diagnosis, care, or treatment of the illness, injury, or condition involved in the

claim[.]” TEX. CIV. PRAC. & REM. Code Ann. § 74.402(b)(2). As demonstrated

above, Nurse Spears’s experience has given her knowledge of the accepted

standards of care for treating placenta accrete and pre-term labor. Thus, any

argument that she is unqualified under 74.402(b)(2) is undermined by the evidence

in this case.

With regard to section 74.402(b)(3), that section requires an expert to be

“qualified on the basis of training or experience to offer an expert opinion

regarding those accepted standards of health care.” TEX. CIV. PRAC. & REM. CODE

Ann. § 74.402(b)(3). As demonstrated above, Nurse Spears is qualified on the

basis of her training and experience. CR 212-219.

On appeal, CCMC insists Nurse Spears is not qualified under subsection

74.402(b)(3) because she was not “fielding phone calls at a hospital’s labor and

delivery or emergency department from EMS or transfer personnel during” the

time of the incident or at the time she offered her opinions. CCMC Appellee’s

Brief at 14-15. However, Nurse Spears does qualify under subsection (b)(3).

Nurse Spears’ curriculum vitae demonstrates that at the time of the incident

(May 15, 2012) she was actively practicing health care by rendering services

relevant to Appellants’ claim against CCMC in that she was supervising registered

nurses who fielded triage phone calls. CR 265. The evidence specifically shows

that she was employed as a clinical supervisor between May 2011–June 2014 and

supervised registered nurses to ensure the proper handling of triage calls2 and

patient safety. CR 265.3

In summary, CCMC waived any complaint that Nurse Spears is unqualified

under 74.402(b)(2) or (b)(3) because it failed to make these complaints to the trial

court. See CR 237, n.22. This argument should not be a part of the appellate

review. See Tamez, 206 S.W.3d at 577. Nevertheless, even should this Court find

this issue preserved for appeal, it is clear that Nurse Spears is qualified and any

dismissal based on her failure to meet 74.402 requirements would have been an

abuse of discretion.

REPLY POINT TWO: Appellants’ expert reports sufficiently connect CCMC’s breach of the standard of care and Yolanda’s injuries and death

A. Nurse Spears adequately stated the standard of care and breach.

CCMC complains that Nurse Spears’s opinions on the standard of

care and the breach of the standard of care are conclusory. CCMC

2 “Triage” means 1: the sorting of and allocation of treatment to patients and especially battle and disaster victims according to a system of priorities designed to maximize the number of survivors; 2: the sorting of patients (as in an emergency room) according to the urgency of their need for care. WEBSTER’S THIRD NEW WORLD DICTIONARY 1683 (2002).

3 CCMC also argues that Nurse Spears had to have been practicing in labor and delivery or an emergency department to be qualified under section 74.402(b)(3). This is incorrect. See Kelly v. Rendon, 255 S.W.3d 665, 673–74 (Tex. App.—Houston [14th Dist.] 2008, no pet.). She only needed to have been actively practicing health care services that are relevant to Appellants’ claim against CCMC. See id. 6

Appellee’s Brief 22–24. As to the applicable standard of care, Nurse Spears

stated:

Standard of care requires the L&D receiving team personnel of the accepting hospital to give appropriate instructions to EMS transfer personnel who call for medical advice concerning a deteriorating pregnant patient.

CR 213. In her addendum, Nurse Spears elaborated that the standard of care

required that CCMC personnel “give appropriate instructions to the inquiring

Medic 192 about [Yolanda’s] deteriorating condition.” Id. 219. Nurse Spears

explained CCMC’s breach:

The staff at [CCMC] L&D department breached the standard of care by advising Hidalgo County EMS to proceed to their facility while bypassing hospitals with the capabilities of care for [Yolanda] and the fetus when EMS called [CCMC] about diverting due to her deteriorating status.

Id. 213. In her addendum, she further detailed the breach, stating that “[t]he L&D

staff [at CCMC] breached the standard of care by instructing Medic 192 not to

divert to an alternate medical facility for evaluation.” Id. 219.

CCMC considers Nurse Spears’s opinion on the standard of care to be

insufficient because she does not define what constituted “appropriate instruction,”

and does not set out what care was expected from CCMC. CCMC Appellee’s

Brief at 24. Similarly, CCMC argues that Nurse Spears’s opinion on breach is

vague and conclusory. CCMC Appellee’s Brief at 24.

An expert report is adequate if it demonstrates a good-faith effort to comply

with the chapter 74’s requirements for expert reports, and no “magical words” are

required for the report to be adequate. See Bowie Mem’l Hosp. v. Wright, 79

S.W.3d 48, 53 (Tex. 2002). Nurse Spears’s reports adequately explain what was

the standard of care required: give appropriate instructions to Hidalgo County

EMS regarding Yolanda Flores’ deteriorating status. Similarly, Nurse Spears’s

reports explain that CCMC breached the standard of care by instructing Hidalgo

County EMS not to divert to another hospital. Nurse Spears’s reports, thus,

articulate that when faced with a patient en route from Brownsville to Corpus

Christi, in pre-term labor with an abrupt placenta resulting in acute blood loss and

oxygen deprivation, CCMC nurses should have given appropriate instructions to

Hidalgo County EMS to divert to another hospital instead of advising them to

continue on their trek to CCMC. See CR 213, 219.

Nurse Spears’s reports inform CCMC “of the conduct the Appellants call

into question and [provides] a basis for the trial court to conclude that the claims

have merit.” Salais v. Tex. Dept. Aging & Disability Serv’s., 323 S.W.3d 527, 533

(Tex. App.—Waco 2010, pet. denied) (citation omitted); 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) (citation omitted). Moreover, Nurse Spears’s reports

demonstrate a good-faith effort to comply with chapter 74, and are therefore an

adequate expert report. See Salais, 323 S.W.3d at 538.

B. Nurse Spears’s reports do not impose a duty on CCMC that violates Texas law

CCMC asserts that Nurse Spears’s reports are inadequate because nurses do

not have the authority to render a medical diagnosis. CCMC Appellee’s Brief 26-

30. However, Nurse Spears’s report on the standard of care did not impose on

CCMC and its nurses to make a medical diagnosis. See generally CR 212-19.

Nurse Spears states the standard of care in this case is for the nurses to correctly

administer patient treatment by giving appropriate instructions to EMS transfer

personnel who called concerning a deteriorating patient. In fact, the correct

administration of treatment is incorporated in the Texas Nurse Practices Act as one

of the standards of nursing practice. 22 TEX. ADMIN. CODE § 217.11(C). Nurse

Spears was not stating the nurses should have diagnosed the patient, but rather the

nurses should have taken adequate measures to correctly administer treatment. See

id. Thus, her report does not “violate Texas law.”

REPLY POINT THREE: Dr. Harlass’s report constitutes a good faith effort to comply with section 74.351

In compliance with chapter 74, Appellants served on CCMC the expert

reports, and addenda, of Grace Spears, R.N. and Dr. Harlass. Nurse Spears

addressed the applicable standard of care and CCMC’s breaches, and Dr. Harlass

discussed how those breaches led to Yolanda’s injuries and death.

CCMC argues that Dr. Harlass’s report does not constitute a good faith

effort to comply with Section 74.351 because he does not offer a causation

opinion, and even if he does, his opinion is conclusory. CCMC Appellee’s Brief

37-38. This is incorrect.

A. Dr. Harlass’s report offers a causation opinion against CCMC that is not conclusory

CCMC states that Dr. Harlass’s report “does not offer a true causation

opinion against CCMC.” CCMC Appellee’s Brief at 31. CCMC specifically

complains that Dr. Harlass never states in his report that CCMC’s alleged failure to

instruct Hidalgo County EMS to divert caused Yolanda’s injuries or death. CCMC

Appellee’s Brief at 31.

The purpose of the causation expert’s report is to provide a “fair summary of

the expert’s opinions regarding the causal relationship between the failure of the

healthcare provider to provide care in accord with the pertinent standard of care

and the injury, harm, or damages claimed.” Cornejo v. Hilgers, 446 S.W.3d 113,

123 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (citing TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(r)(6)). “No particular words or formality are required,

but bare conclusions will not suffice.” Scoresby v. Santillan, 346 S.W.3d 546, 556

(Tex. 2011) (citations omitted). A causal relationship is established by proof that 10

a negligent act or omission constituted a substantial factor in bringing about harm

and, absent the act or omission, the harm would not have occurred. Costello v.

Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San

Antonio 2004, no pet.). The expert simply “must explain the basis of his

statements and link his conclusions to the facts.” Id. (citation omitted).

Dr. Harlass determined that CCMC’s actions were a cause of Yolanda’s

injuries and death. CR 91. Specifically, Dr. Harlass stated, in relevant part:

Due to the [CCMC’s] personnel’s breaches of care in informing the EMS personnel not to divert when [Yolanda] was in an emergency situation (oxygen deprivation and bleeding)…her bleeding continued unabated and she suffered cardiovascular arrest, DIC and death.

Id. at 91 (parentheses in original).

While CCMC is correct that Dr. Harlass does not use the word “cause” in his

report, no particular words or formality are required. See Scoresby, 346 S.W.3d at

556. CCMC asserts that Dr. Harlass “simply state[s] that CCMC’s alleged failure

to divert resulted in her pre-existing condition (abrupted placenta and bleeding) to

‘continue unabated.’” CCMC Appellee’s Brief 32-33. According to CCMC, Dr.

Harlass “never states that an instruction to divert would have allowed for timely

intervention to save Ms. Flores’ life.” CCMC Appellee’s Brief at 33.

An expert report must explain, to a reasonable degree, how and why the

alleged breach caused the complained of injury based on the facts presented. See

Jelinek v. Casas, 328 S.W.3d 526, 539–40 (Tex. 2010). Here, contrary to CCMC’s 11

assertions, Dr. Harlass’s report does just that. Dr. Harlass opines that CCMC’s

failure to inform “the EMS personnel not to divert when [Yolanda] was in an

emergency situation” resulted in “her bleeding [to] continue unabated.” CR 91.

And the unabated bleeding resulted in Yolanda’s “cardiovascular arrest, DIC and

death.” Id.

Thus, Dr. Harlass provided a causation opinion that was not conclusory and

gave a “fair summary” of his opinions “regarding the causal relationship between

the failure of [CCMC] to provide care in accord with the pertinent standard of

care” and Yolanda’s injuries and death. See Cornejo, 446 S.W.3d at 123; Fortner

v. Hosp. of the Sw., LLP, 399 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.).

B. Dr. Harlass is qualified to render a causation opinion against CCMC

CCMC asserts that chapter 74 requires Appellants to provide an expert

report from someone qualified to offer opinions on the blood loss Yolanda suffered

en route to CCMC. CCMC Appellee’s Brief at 33. Dr. Harlass is so qualified.

In his expert report, Dr. Harlass notes that he has been practicing obstetrics

and gynecology since 1980, and he is board certified in both Obstetrics and

Gynecology and Maternal-Fetal Medicine (“OBGYN/MFM”) by the American

Board of Obstetrics and Gynecology. CR 92. He has experience treating hundreds

of patients in preterm labor with placenta previa or accreta, like Yolanda. Id.

Dr. Harlass has been a professor of, and regional chair of, OB/GYN at Texas

Tech University School of Medicine, and a director of that school’s residency

program. Id. at 99. He has published a paper on placenta accreta, among dozens

of other papers. Id. at 102. In addition, Dr. Harlass’s report established his

familiarity with the issues involved in the claims in this case. Id. at 92.

Dr. Harlass’s report shows that he has experience in treating and diagnosing

patients with the conditions suffered by Yolanda, namely preterm labor and

placenta accreta. CR 91. Dr. Harlass’s report also states how Yolanda’s condition,

placenta accreta, can detach and cause a patient to bleed profusely. Id. As a result

of Dr. Harlass’s experience in treating hundreds of patients with Yolanda’s exact

condition, his is qualified to render an opinion as to the cause of Yolanda’s death.

See Tawa v. Gentry, No. 01–12–00407–CV, 2013 WL 1694869, at *7 (Tex. App.–

Houston [1st Dist.] Apr. 18, 2013, no pet.) (mem. op.) (holding expert sufficiently

qualified to opine on standard of care by “showing the injury involved was of the

type [the expert] treated in his practice” (internal quotation marks omitted));

Hillery v. Kyle, 371 S.W.3d 482, 487 (Tex. App.—Houston [1st Dist.] 2012, no

pet.) (concluding the expert was qualified, where expert stated familiarity “with the

standards of care relevant to the condition involved in th[e] claim” and he had

“diagnosed and treated, ‘patients with the conditions similar to those experienced

by’” plaintiff); Rittger v. Danos, 332 S.W.3d 550 at 558–59 (Tex. App.—Houston

[1st Dist.] 2009, no pet.) (noting focus not on defendant doctor's area of expertise,

but on condition involved in claim).

REPLY POINT FOUR: Alternatively, Appellants are entitled to amend reports.

In the event this Court finds Appellants’ expert reports deficient, CCMC

argues Appellants are not entitled to remand for the trial court to consider a 30-day

extension. CCMC contends that “Appellants have not produced a report

concluding the claims against CCMC have merit.” CCMC Appellee’s Brief 33.

To be effective, an expert report must inform the defendant about the

conduct complained of and must provide a basis from which the trial court can

determine whether the claims have merit. Am. Transitional Care Ctrs. of Tex., Inc.

v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The report “must address all the”

statutory elements, “and omissions may not be supplied by inference.” Scoresby,

346 S.W.3d at 556.

The Supreme Court set out a “minimal standard” under which a claimant

who timely files a deficient report may be entitled to a 30-day extension to cure the

deficiencies rather than have his suit dismissed for failing to file a timely expert

report. Id. at 557. Under this standard, a 30-day extension may be granted “if the

report is served by the statutory deadline, if it contains the opinion of an individual

with expertise that the claim has merit, and if the defendant's conduct is

implicated.” Id.

Here, the reports are not fatally deficient, nor can they be considered “no

report” under the statute. The expert reports of Nurse Spears and Dr. Harlass in

this case were timely served, were offered by individuals with expertise in caring

for patients in emergency labor and delivery situations, and implicated CCMC’s

conduct. See Scoresby, 346 S.W.3d at 557. Because Appellants met these

minimum qualifications, they should be entitled to one 30-day extension to cure

the deficiencies in the reports. See Christus Spohn Health Sys. Corp. v. Castro,

No. 13-13-00302-CV, 2013 WL 6576041, at *7 (Tex. App.—Corpus Christi Dec.

12, 2013, no pet.) (mem. op.).

PRAYER

Appellants pray that the trial court’s orders granting the motions to dismiss

be reversed and the case be remanded for further proceedings.

Respectfully submitted,

WEST, WEBB, ALLBRITTON & GENTRY, P.C. 1515 Emerald Plaza College Station, Texas 77845-1515 Telephone: (979) 694-7000 Facsimile: (979) 694-8000

By: /s Gaines West Gaines West State Bar No. 21197500 gaines.west@westwebblaw.com Jennifer D. Jasper State Bar No.: 24027026 E-mail: jennifer.jasper@westwebblaw.com

Donald Delgado State Bar No. 24065139 donald.delgado@westwebblaw.com

CERTIFICATE OF COMPLIANCE

I certify that this Reply BRIEF OF APPELLANTS complies with the typeface and word-count requirement set forth in the Rules of Appellate Procedure. This motion has been prepared, using Microsoft Word, in 14-point Times New Roman font for the text and 12-point Times New Roman font for any footnotes. This motion contains 3418 words, as determined by the word count feature of the word processing program used to prepare this document, excluding those portions of the notice exempted by TEX. R. APP. P. 9.4(i)(1).

/s Gaines West Gaines West

CERTIFICATE OF SERVICE

On July 6, 2015, the undersigned certifies that he served a copy of this Reply Brief of Appellants on the following in the manner listed below, in compliance with Texas Rules of Appellate Procedure 9.5 and 25.1(e):

Nichole G. Andrews Via Facsimile ~ 713.452.4499 Christopher Knudsen ECF Email Margaret Garib nandrews@serpejones.com Serpe, Jones, Andrews, Collender & Bell cknudsen@serpejones.com 2929 Allen Parkway, Suite 1600 mgarib@serpejones.com Houston, Texas 77019

Jeffrey D. Roerig Via Facsimile ~ 956.542.0016 David M. Roerig And ECF Email Roerig, Oliverira & Fisher, LLP ruthm@rofllp.com 855 West Price Road, Suite 9 jroerig@rofllp.com Brownsville, Texas 78520-8786

CASES AND STATUTES Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

fractured led to necessity of two additional surgeries. Vernon's Ann.Texas Civ.St. art. 4590i, 79 S.W.3d 48 § 13.01(l), (r)(6). Supreme Court of Texas. 213 Cases that cite this headnote BOWIE MEMORIAL HOSPITAL a/ k/a Bowie Hospital District d/b/a Bowie Hospital District Authority d/b/ [2] Health a Bowie Memorial Hospital, Petitioner, Affidavits of merit or meritorious defense; v. expert affidavits Barbara WRIGHT and P.L. Wright, Respondents. For an expert's report to constitute a “good- faith effort” to comply with statutory definition No. 01–0814. | June 13, 2002. of an expert report, pursuant to the Medical Liability and Insurance Improvement Act, report Patient brought medical malpractice action against hospital, must provide enough information to fulfill two physician, physician's assistant, and others, alleging that purposes: (1) report must inform defendant failure to timely discover that her foot was fractured led to of specific conduct plaintiff has called into necessity of two additional surgeries. The 78th District Court, question, and (2) equally important, report must Wichita County, Keith Nelson, J., dismissed patient's claims. provide basis for trial court to conclude that Patient appealed. The Fort Worth Court of Appeals, 48 S.W. claims have merit. Vernon's Ann.Texas Civ.St. 3d 443, affirmed in part, reversed in part, and remanded. Upon art. 4590i, § 13.01(l), (r)(6). grant of hospital's petition for review, the Supreme Court held that expert report submitted by patient did not constitute a 259 Cases that cite this headnote good-faith effort to summarize causal relationship between hospital's alleged failure to meet applicable standards of care [3] Health and patient's injury under Medical Liability and Insurance Affidavits of merit or meritorious defense; Improvement Act. expert affidavits

Reversed. In determining the adequacy of an expert report under the Medical Liability and Insurance Improvement Act, the trial court should look no further than the report. Vernon's Ann.Texas West Headnotes (8) Civ.St. art. 4590i, § 13.01(l).

10 Cases that cite this headnote [1] Health Affidavits of merit or meritorious defense; expert affidavits [4] Health Affidavits of merit or meritorious defense; Expert report submitted by patient did not expert affidavits constitute a good-faith effort to summarize causal relationship between hospital's alleged For an expert's report to satisfy the requirements failure to meet applicable standards of care of the Medical Liability and Insurance and patient's injury under Medical Liability Improvement Act, the report need not marshal and Insurance Improvement Act; report lacked all the plaintiff's proof, but it must include the information linking expert's conclusion, which expert's opinion on each of the three elements was that patient might have had a better outcome, that the Act identifies: standard of care, breach, to hospital's alleged breach, which was that and causal relationship. Vernon's Ann.Texas it did not correctly read and act upon x-rays, Civ.St. art. 4590i, § 13.01(l). thus requiring dismissal of patient's medical 115 Cases that cite this headnote malpractice action against hospital, alleging that failure to timely discover that her foot was

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

[5] Health Attorneys and Law Firms Affidavits of merit or meritorious defense; expert affidavits *50 Gregory J. Lensing, Charles T. Frazier, Jr. Cowles & Thompson, Dallas, Susan Irene Nelson, Dallas, for Petitioner. In determining the adequacy of an expert report under the Medical Liability and Insurance Britta Jean Gordon, Michael Kevin Queenan, Queenan Law Improvement Act, a report cannot merely state Firm, DeSoto, for Respondents. the expert's conclusions about standard of care, breach, and causal relationship; rather, the expert Opinion must explain the basis of his statements to link his conclusions to the facts. Vernon's Ann.Texas PER CURIAM. Civ.St. art. 4590i, § 13.01(l). This case involves the Medical Liability and Insurance 219 Cases that cite this headnote Improvement Act's (“the Act”) expert-report requirements. See TEX.REV.CIV. STAT. art. 4590i, § 13.01. The trial court dismissed the plaintiffs' medical malpractice claims [6] Appeal and Error after it determined that their expert report did not satisfy Rulings on Motions Relating to Pleadings the Act's requirements. The court of appeals concluded that Trial court's order dismissing a claim for failure the trial court abused its discretion when it dismissed the to comply with Medical Liability and Insurance plaintiffs' claims, because the expert report represented a Improvement Act's requirements for an expert good-faith effort to comply with the Act. 48 S.W.3d 443, 448. report is reviewed under an abuse-of- discretion We disagree. Accordingly, we reverse the court of appeals' standard. Vernon's Ann.Texas Civ.St. art. 4590i, judgment and dismiss with prejudice the Wrights' claims § 13.01(l), (r)(6). against Bowie Memorial Hospital.

73 Cases that cite this headnote Barbara Wright was admitted to Bowie after she sustained injuries in a car accident. While at Bowie, Michael Layne, a [7] Appeal and Error physician's assistant that Bowie employed, x-rayed Barbara's Abuse of discretion right knee and foot and diagnosed her with a fractured patella. However, Layne allegedly misplaced or misread the foot x- A trial court abuses its discretion if it acts in ray and, therefore, did not discover that Barbara had also an arbitrary or unreasonable manner without fractured her right foot in the accident. Shortly after Barbara reference to any guiding rules or principles. was admitted to Bowie, Dr. Hodde, Layne's supervisor, 171 Cases that cite this headnote recommended that Bowie refer her to an orthopedic surgeon. Barbara was immediately referred to an orthopedic surgeon and transferred to another hospital. Her accompanying [8] Appeal and Error medical report, which Layne prepared, only indicated that Power to Review Barbara had a fractured knee. When reviewing matters committed to the trial court's discretion, a court of appeals may not Nearly a month after the accident, Barbara's orthopedic substitute its own judgment for the trial court's surgeon discovered Barbara's fractured foot. By that time, the judgment. surgeon had already operated on Barbara's knee. The Wrights claim that the surgeon could have operated on Barbara's 89 Cases that cite this headnote foot at the same time if he had known about the injury. Instead, Barbara had two additional surgeries over the next ten months.

Barbara and her husband sued Bowie, Layne, and Dr. Hodde for medical malpractice. The Wrights also sued the orthopedic surgeon, another treating doctor, and three

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

medical clinics not associated with Bowie. The Wrights' Nevertheless, the Wrights claimed that, if Bowie's report had allegations pertinent here are that Bowie personnel did not: indicated that Barbara had a broken foot, it would have been diagnose Barbara's foot fracture; protect her foot; review “much easier” for the orthopedic doctor to make a proper diagnostic tests ordered and administered at the hospital; or diagnosis. After the second hearing, the trial court granted properly supervise Layne. Bowie's motion to dismiss. The record indicates that the trial court did not believe the Wrights' claims against Bowie, “the The Wrights filed an expert medical report about Bowie's, people who transferred [Barbara],” had merit, given that the Dr. Hodde's, and another doctor's alleged negligence. See orthopedic surgeon “could have done his own work.” TEX.REV.CIV. STAT. art. 4590i, § 13.01(d). The expert report states, in part: The court of appeals reversed and remanded, holding that the trial court abused its discretion when it dismissed the I have reviewed the material you sent me on the above Wrights' claims against Bowie. 48 S.W.3d at 448. The case. I believe that the hospital fell below the appropriate court concluded that the report inadequately summarizes standard of care in not having a defined mechanism in place the causal relationship between Bowie's alleged negligence whereby x-rays taken in the E.R. are read by a physician and Barbara's injury. However, it determined that the report specialized in interpreting the films in a timely manner (i.e., represents a good-faith effort to comply with the Act, because less than 24 hrs). X-rays taken in the E.R. need to have it raises the possibility that, but for Bowie's breach, Barbara re-reads performed within 24 hrs and if *51 there is a “would have had a better outcome.” 48 S.W.3d at 447. discrepency [sic] in the x-ray readings a system should be in place to inform the patient of this. There did not appear to [1] Medical-malpractice plaintiffs must provide each be any procedure that the hospital has for tracking x-rays. defendant physician and health-care provider an expert report The hospital also doesn't seem to have a system of orienting with the expert's curriculum vitae, or they must voluntarily health care professionals working in the E.R. nor any form nonsuit the action. See TEX.REV.CIV. STAT. art. 4590i, § of Q/A for P.A.'s staffing the E.R. There didn't appear to 13.01(d); American Transitional Care Ctrs. of Tex., Inc. v. be any organized system or protocols for P.A. supervision Palacios, 46 S.W.3d 873, 877 (Tex.2001). The expert report in the E.R. must provide “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 I do believe that it is reasonable to believe that if the x- health care provider failed to meet the standards, and the rays would have been correctly read and the appropriate causal relationship between that failure and the injury, harm, medical personnel acted upon those findings then Wright or damages claimed.” TEX.REV.CIV. STAT. art. 4590i, would have had the possibility of a better outcome. § 13.01(r)(6). If a plaintiff timely files an expert report and the defendant moves to dismiss because of the report's Bowie moved to dismiss the Wrights' claims, alleging inadequacy, the trial court must grant the motion “only if it that the expert report “fails to establish how any act or appears to the court, after hearing, that the report does not omission of employees of Bowie Memorial Hospital caused represent a good faith effort to comply with the definition of or contributed to Ms. Wright's injuries.” Therefore, Bowie an expert report in Subsection (r)(6) of this *52 section.” argued, the report does not satisfy the Act's requirements. TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ) (emphasis added). The trial court held two hearings to determine if the report represents a good-faith effort to meet the Act's requirements. [2] We recently discussed the Act's expert-report See TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ). At requirement for medical-malpractice cases. See Palacios, the first hearing, the trial court asked about the causal 46 S.W.3d at 877–80. In Palacios, we explained that, relationship between Bowie's conduct and Barbara's injury. when considering a motion to dismiss under section 13.01(l The Wrights explained that if Bowie had diagnosed Barbara's ), “[t]he issue for the trial court is whether ‘the report’ fractured foot earlier, then she “probably would have had represents a good-faith effort to comply with the statutory a better outcome.” They also conceded that the orthopedic definition of an expert report.” Palacios, 46 S.W.3d at 878. specialist Barbara saw immediately after leaving Bowie To constitute a “good-faith effort,” the report must provide “had an independent duty to verify” Bowie's medical report. enough information to fulfill two purposes: (1) it must inform

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

the defendant of the specific conduct the plaintiff has called expert report must fulfill Palacios 's two-part test. See into question, and (2) it must provide a basis for the trial court Palacios, 46 S.W.3d at 879. Thus, under the Palacios test, to conclude that the claims have merit. Palacios, 46 S.W.3d we must determine whether the trial court acted unreasonably at 879. and without reference to guiding principles when it dismissed the Wrights' claims against Bowie. See Downer, 701 S.W.2d [3] [4] [5] The trial court should look no further than at 241–42. the report itself, because all the information relevant to the inquiry is contained within the document's four corners. The Wrights primarily rely on one statement in the report to Palacios, 46 S.W.3d at 878. The report need not marshal all establish causation: “if the x-rays would have been correctly the plaintiff's proof, but it must include the expert's opinion read and the appropriate medical personnel *53 acted upon on each of the three elements that the Act identifies: standard those findings then Wright would have had the possibility of care, breach, and causal relationship. Palacios, 46 S.W.3d of a better outcome.” In their brief to this Court, the at 878. A report cannot merely state the expert's conclusions Wrights contend that this statement “explains why Petitioners' about these elements. Palacios, 46 S.W.3d at 879. “[R]ather, damages were caused by Bowie Hospital's breach: if the the expert must explain the basis of his statements to link his proper medical personnel at Bowie had reviewed the x-rays, conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d 882, [Barbara] would have had a chance of diagnosis and treatment 890 (Tex.1999). of her foot fracture.”

[6] [7] [8] We review a trial court's order dismissing a Bowie responds that the report's statement about causation is claim for failure to comply with section 13.01(d)'s expert- conclusory, because it does not explain how Bowie's failing to report requirements under an abuse-of-discretion standard. correctly read or act upon the x-rays caused injury to Barbara. Palacios, 46 S.W.3d at 878. A trial court abuses its discretion Moreover, Bowie asserts, the statement does not even identify if it acts in an arbitrary or unreasonable manner without the specific injuries Bowie's conduct allegedly caused. reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 In reviewing the report's adequacy, the court of appeals (Tex.1985). When reviewing matters committed to the trial focused on “whether the report provides a basis to conclude court's discretion, a court of appeals may not substitute its that the claims have merit.” 48 S.W.3d at 447 (citing own judgment for the trial court's judgment. See Flores v. Palacios, 46 S.W.3d at 878–79). Although the causation Fourth Ct. of Appeals, 777 S.W.2d 38, 41 (Tex.1989). statement recognizes only the “possibility”—rather than the “reasonable medical probability”—that Barbara might have Here, the parties do not dispute that the expert report fairly had a better outcome, the court of appeals concluded that the summarizes the alleged standard of care, because it states report's adequacy should not turn “solely upon the claimant's that a hospital should have established procedures to read failure to use magical words like ‘reasonable probability.’ ” and interpret x-rays in a timely manner and to inform 48 S.W.3d at 447. Accordingly, the court of appeals held that patients about the results. See TEX.REV.CIV. STAT. art. the report met the good-faith effort test, because it gave the 4590i, § 13.01(r)(6). Also, the parties do not dispute that the trial court a basis to conclude that the Wrights' claims against report fairly summarizes how Bowie allegedly breached the Bowie have merit. 48 S.W.3d at 448. standard of care, because the report states that Bowie did not have a procedure to track x-rays. See TEX.REV.CIV. STAT. We agree with the court of appeals' conclusion that a art. 4590i, § 13.01(r)(6). Consequently, the parties only report's adequacy does not depend on whether the expert uses contest whether the report constitutes a “good-faith effort” any particular “magical words.” Nothing in the Act's plain to fairly summarize the causal relationship between Bowie's language, or in Palacios, suggests that, for these purposes, alleged breach and Barbara's injury. See TEX.REV.CIV. an expert report must express the causal relationship in terms STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at 879. of “reasonable medical probability.” However, we disagree with the court of appeals' conclusion that the trial court Contrary to the court of appeals' conclusion, it is not enough abused its discretion in dismissing the Wrights' claims against that the expert report “provided insight” about the plaintiff's Bowie. We have held that the only information relevant to claims. See 48 S.W.3d at 447. Rather, to constitute a good- whether a report represents a good-faith effort to comply with faith effort to establish the causal-relationship element, the the statutory requirements is the report itself. Palacios, 46

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002) 45 Tex. Sup. Ct. J. 833

trial court could have reasonably determined that the report S.W.3d at 878. And, we have held that we review a trial court's was conclusory. See Palacios, 46 S.W.3d at 880; Earle, 998 decision about whether a report constitutes a good-faith effort S.W.2d at 890. A conclusory report does not meet the Act's to comply with the Act under an abuse-of-discretion standard. requirements, because it does not satisfy the Palacios test. Palacios, 46 S.W.3d at 878. Palacios, 46 S.W.3d at 879. After reviewing this report, we conclude that the trial *54 For these reasons, we hold that the trial court did not court could have reasonably determined that the report does abuse its discretion when it concluded that the report did not not represent a good-faith effort to summarize the causal represent a good-faith effort to meet the Act's requirements. relationship between Bowie's failure to meet the applicable Therefore, the trial court had no discretion but to dismiss standards of care and Barbara's injury. See TEX.REV.CIV. the plaintiffs' claims against Bowie. See TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at STAT. art. 4590i, § 13.01(l ); Palacios, 46 S.W.3d at 880. 879. That is because the report simply opines that Barbara In reviewing the trial court's order, the court of appeals might have had “the possibility of a better outcome” without improperly substituted its own judgment for the trial court's explaining how Bowie's conduct caused injury to Barbara. judgment. See Flores, 777 S.W.2d at 41. Accordingly, we We cannot infer from this statement, as the Wrights ask us to, grant Bowie's petition for review. Without hearing oral that Bowie's alleged breach precluded Barbara from obtaining argument, we reverse the court of appeals' judgment and a quicker diagnosis and treatment for her foot. Rather, the dismiss with prejudice the Wrights' claims against Bowie. See report must include the required information within its four TEX.R.APP. P. 59.1. corners. See TEX.REV.CIV. STAT. art. 4590i, § 13.01(r) (6); Palacios, 46 S.W.3d at 878. Because the report lacks information linking the expert's conclusion (that Barbara All Citations might have had a better outcome) to Bowie's alleged breach (that it did not correctly read and act upon the x-rays), the 79 S.W.3d 48, 45 Tex. Sup. Ct. J. 833

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013) 2013 WL 6576041

On or about October 24, 2011, 50–year–old Jose Castro 2013 WL 6576041 was in a serious car accident. He was a belted passenger Only the Westlaw citation is currently available. in a Ford F–150 crew cab. The truck rolled and the roof crushed, causing severe injuries to Mr. Castro. Mr. Castro SEE TX R RAP RULE 47.2 FOR was transported via helicopter to the emergency room at DESIGNATION AND SIGNING OF OPINIONS. Christus Spohn Hospital in critical condition. Mr. Castro MEMORANDUM OPINION sustained severe injuries including, but not limited to, Court of Appeals of Texas, fracture and dislocation of his cervical spine at C5–C6, Corpus Christi–Edinburg. multiple rib fractures, a collapsed lung, and damage to his right phrenic nerve. He remained in intensive care through CHRISTUS SPOHN HEALTH most of December 2011. Mr. Castro had no sensation or SYSTEM CORPORATION, Appellant, movement below the nipple line, putting him at high risk v. of skin breakdown. Jose CASTRO, Appellee. In November 2011, Mr. Castro developed a pressure ulcer No. 13–13–00302–CV. | Dec. 12, 2013. on his tail bone. The cause was the use of the tangible property, the hospital bed. By the time Mr. Castro was On appeal from the 117th District Court of Nueces County, discharged from Christus Spohn Hospital in February Texas. Sandra Watts, Judge. 2012, the pressure ulcer had progressed to a grade III decubitus ulcer.... Attorneys and Law Firms At all relevant times hereto, Mr. Castro was a patient of Lori W. Hanson, Beirne, Maynard & Parsons, LLP, San Christus Spohn Hospital. Antonio, TX, for Appellant. Complaining of the pressure ulcer, in particular, Castro Collen A. Clark, The Clark Firm, Dallas, TX, for Appellee. brought a health care liability claim against Spohn. 1 In that Before Chief Justice VALDEZ and Justices RODRIGUEZ claim, Castro alleged that Spohn was negligent in: its use of and GARZA. the hospital bed; its failure to develop and employ policies to oversee patients like Castro; its failure to train and supervise personnel to carry out such policies; its failure to render MEMORANDUM OPINION appropriate medical and nursing intervention to Castro; its failure to provide adequate nutritional support to Castro; its Memorandum Opinion by Justice RODRIGUEZ. failure to plan for and protect Castro from bedsores and ulcers; its failure to follow Castro's doctors' orders; and *1 Appellant Christus Spohn Health System Corporation its failure to maintain the highest practical level of care (Spohn) challenges the trial court's denial of its motion to for Castro. Castro alleged that this negligence proximately dismiss appellee Jose Castro's health care liability claim. caused the injuries he suffered at Spohn. SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b) (West 2011). By two issues, Spohn argues that: (1) Castro's 1 In this same lawsuit, Castro has also alleged causes experts were not qualified to opine on the specific area of of action against the driver of the truck for negligence health care involved in this suit; and (2) Castro's reports were and against Ford Motor Company for products liability. contradictory and conclusory and were therefore “no reports” Neither of those causes of action are before us in this under the law. See id. § 74.351(l ), (r)(6). We reverse and accelerated, interlocutory appeal. remand. In support of his health care liability claim, Castro timely filed two expert reports—one authored by Donna du Bois, MPH, RN and another authored by Perry Starer, M.D. Both I. Background du Bois and Dr. Starer are geriatric specialists with extensive experience in caring for pressure ulcers in hospital and Castro alleged the following facts in his petition: nursing home settings. Spohn objected to both expert reports,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013) 2013 WL 6576041

arguing that neither du Bois nor Dr. Starer was qualified comply with the definition of an expert report in Subsection to offer opinions as to the conditions under which Castro (r)(6).”Id. § 74.351(l ); see Loaisiga v. Cerda, 379 S.W.3d suffered his injuries, i.e., the development of a pressure ulcer 248, 260 (Tex.2012). To qualify as an objective good faith in trauma care conditions while Castro was simultaneously effort, the report must (1) inform the defendant of the specific suffering from quadriplegia, diabetes, bacterial infections, conduct the plaintiff complains of, and (2) provide a basis and respiratory distress. Spohn also filed motions to dismiss for the trial court to conclude that the plaintiff's claims have Castro's health care liability claim, arguing that Castro's merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.2011) reports are “no reports” and the claim should therefore be (citing Palacios, 46 S.W.3d at 879). The report and/or its dismissed because neither du Bois nor Dr. Starer is qualified accompanying curriculum vitae (CV) must also establish and the reports are contradictory and conclusory. After a that the report's author is qualified to opine as an expert hearing, the trial court denied Spohn's objections and motions on the subject matter of the report.Leland v. Brandal, 217 to dismiss. This accelerated, interlocutory appeal followed. S.W.3d 60, 62 (Tex.App.-San Antonio 2006), aff'd on other See id. § 51.014(a)(9) (West Supp.2011). grounds,257 S.W.3d 204 (Tex.2008). Those qualifications must appear within the four corners of the expert report and cannot be inferred. Id.; see also Palacios, 46 S.W.3d at 878; Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, II. Standard of Review 117 (Tex.App.-Houston [14th Dist.] 2009, no pet.). To meet *2 We review a trial court's decision with respect to the “good faith effort” requirement, “[n]o particular words or expert reports and the qualifications of experts for an abuse formality are required, but bare conclusions will not suffice. of discretion. Larson v. Downing, 197 S.W.3d 303, 304– The report must address all the elements, and omissions 05 (Tex.2006); Jernigan v. Langley, 195 S.W.3d 91, 93 may not be supplied by inference.”Scoresby, 346 S.W.3d (Tex.2006); Am. Transitional Care Ctrs. of Tex., Inc. v. at 556 (citations omitted).“The purpose of the expert report Palacios, 46 S.W.3d 873, 876 (Tex.2001). The trial court requirement is to deter frivolous claims, not to dispose of abuses its discretion if it acts unreasonably or arbitrarily or claims regardless of their merits.”Id. at 554 (citation omitted). without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). A report meets the minimum qualifications for an expert report under the statute “if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant's conduct is implicated.”Id. at 557.If a report meets III. Applicable Law these qualifications but is deficient, the claimant is entitled to one thirty-day extension to cure the deficiencies. TEX. CIV. Under Chapter 74, an expert report is defined as: PRAC. & REM.CODE ANN. § 74.351(c).“All deficiencies, a written report by an expert that whether in the expert's opinions or qualifications, are subject provides a fair summary of the expert's to being cured before an appeal may be taken from the trial opinions as of the date of the report court's refusal to dismiss the case.”Scoresby, 346 S.W.3d at regarding applicable standards of care, 557;see also Leland, 257 S.W.3d at 207–08 (holding that the manner in which the care rendered when elements of a timely filed expert report are found by the physician or health care deficient, either by the trial court or on appeal, one thirty-day provider failed to meet the standards, extension to cure the report may be granted). and the causal relationship between that failure and the injury, harm, or damages claimed. IV. Qualifications of Experts TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6). *3 By its first issue, Spohn contends that because the care When a document purporting to be an expert report is timely provided to Castro by the hospital was under intensive care served and is properly challenged, as is the case here, the trial unit (ICU) or trauma conditions, his development of pressure court “shall grant [the] motion challenging the adequacy of ulcers must be addressed in the context of those conditions. [the] report only if it appears to the court, after hearing, that And because neither du Bois nor Dr. Starer practice in the the report does not represent an objective good faith effort to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013) 2013 WL 6576041

field of ICU/trauma care, Spohn argues that they are not treatment of pressure ulcers to both physicians and nurses. qualified to author expert reports in this case. Finally, Dr. Starer states:

To be qualified to provide opinion testimony on whether In the regular course of my medical a health care provider departed from the accepted standard practice, I have occasion to diagnose of care, an expert must satisfy section 74.402. SeeTEX. and treat patients with conditions CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)(B).Section substantially similar to or identical 74.402 lists three specific qualifications an expert witness with those of Jose Castro, including must possess to provide opinion testimony on how a health mobility limitations. I have also served care provider departed from accepted standards of health care as a primary care physician for —the expert must: hospital and nursing home patients since 1985. Over the course of my (1) [be] practicing health care in a field of practice that career, I have been the primary care involves the same type of care or treatment as that physician for more than 5,000 patients delivered by the defendant health care provider, if the in hospitals and nursing homes. Many defendant health care provider is an individual, at the of those patients have struggled with time the testimony is given or was practicing that type disabilities similar to those Jose of health care at the time the claim arose; Castro experienced. Accordingly, I have cared for and treated numerous (2) [have] knowledge of accepted standards of care for patients who, like Jose Castro, were health care providers for the diagnosis, care, or treatment at risk for development of pressure of the illness, injury, or condition involved in the claim; ulcers. and *4 In their reports and CVs, neither du Bois nor Dr. Starer (3) [be] qualified on the basis of training or experience states that they have experience preventing and treating to offer an expert opinion regarding those accepted bedsores in the context of ICU or trauma care or explains how standards of health care. their fields of practice involve the same type of ICU/trauma care Spohn provided to Castro. Id.§ 74.402(b) (West 2011).

Spohn does not dispute that du Bois is an expert in the A plaintiff offering expert medical testimony must establish field of nursing home care and Dr. Starer is an expert in the that the report's author has expertise regarding “the specific field of geriatrics and nursing home care, or that these fields issue before the court which would qualify the expert to give regularly involve the prevention and treatment of pressure an opinion on that particular subject.”Broders v. Heise, 924 ulcers. Rather, Spohn argues that neither expert is practicing S.W.2d 148, 153 (Tex.1996). Our analysis of the proffered or has otherwise relevant experience in ICU/trauma care, expert's qualifications focuses on “the very matter” on which which is the relevant field of practice in this case. We agree. the expert is to give an opinion. Id. In his petition, Castro alleges that he remained in Spohn's trauma unit and ICU from October 24, 2011 through most of Here, du Bois's CV shows that she has over thirty years' December 2011 as a result of the severe injuries he sustained experience as a nurse, primarily in the field of nursing home in the car accident, including a collapsed lung, multiple care and other long-term facility care. In her report, du Bois broken ribs, and a fractured and dislocated spine. In their stated that she is familiar with the standard of care for the descriptions of Castro's conditions, both du Bois and Dr. “prevention of pressure ulcers... expected by ordinary prudent Starer acknowledge these serious injuries and that Castro was nurses in Texas.”In his report, Dr. Starer states that he is “a being cared for under intensive care or trauma conditions. practicing physician licensed by the State of New York.”Dr. Castro then alleges that his pressure ulcer developed in Starer states that he has been “board certified in Internal November 2011, which is while he was in the ICU. In short, Medicine and Geriatrics” since 1985. Dr. Starer states that under the facts alleged in his own petition, it is clear that he teaches in the field of geriatrics at Mount Sinai School the care provided to Castro by Spohn was trauma and ICU of Medicine and has given lectures on the prevention and care. Castro's pressure ulcer developed in this context, and his experts must be qualified to opine on his injury in the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013) 2013 WL 6576041

context of these conditions. Examining only what is within is not without limits. See Walker, 111 S.W.3d at 62 (holding the four-corners of the experts' reports and CVs, see Palacios, that a court abuses its discretion if it acts without reference to 46 S.W.3d at 878; Pokluda, 283 S.W.3d at 117, we find guiding rules and principles). Castro was required to submit nothing in either du Bois or Dr. Starer's reports that meets this reports authored by experts who are “practicing health care requirement. in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care Castro argues that Spohn's characterization of the relevant provider,” have “knowledge of accepted standards of care ... field of practice in this case sets the bar too high, that for the diagnosis, care, or treatment of the illness, injury, Spohn is essentially requiring Castro to find a specialist in or condition involved in the claim,” and are “qualified on the treatment of “a 50–year–old quadriplegic with diabetes, the basis of training or experience to offer an expert opinion PEG tube feeding, with a tracheostomy [sic] and neurologic regarding those accepted standards of health care.”SeeTEX. deficits, with prior cardiac arrest and suffering from bacterial CIV. PRAC. & REM.CODE ANN. § 74.402(b). Focusing on infections.”This characterization overstates what is required the specific issue before the trial court as alleged in Castro's in this case. Although it is true that an expert need not be a petition, see Broders, 924 S.W.2d at 153, we cannot conclude practitioner in the same specialty as the defendant to qualify that the information provided in du Bois and Dr. Starer's as an expert, see Broders, 924 S.W.2d at 153, he or she reports show them to be practicing in the relevant field of is only competent if he or she has practical knowledge of practice or show them to have any other relevant experience what is usually and customarily done by a practitioner under giving them knowledge of the standard of care for the specific circumstances similar to those confronting the defendant. See conditions in this case. SeeTEX. CIV. PRAC. & REM.CODE Ehrlich v. Miles, 144 S.W.3d 620, 625 (Tex.App.-Fort Worth ANN. § 74.402(b); Blan, 7 S.W.3d at 746. As such, the trial 2004, pet. denied). In other words, the proper inquiry in court did not follow guiding rules and principles in denying assessing an expert's qualifications to submit a report is not Spohn's objections to the expert's qualifications and motion his or her area of expertise but his or her familiarity with to dismiss on this basis. Spohn's first issue is sustained. the specific issues involved in the claim before the court. See Blan v. Ali, 7 S.W.3d 741, 746 (Tex.App.-Houston [14th Dist.] 1999, no pet.); see also Broders, 924 S.W.2d at 153. IV. Sufficiency of Report Here, as discussed above, Castro's petition includes facts showing that the circumstances under which he developed By its second issue, Spohn argues that Castro's reports were his pressure ulcer involved trauma and ICU treatment of his contradictory and conclusory and are therefore “no report” severe injuries following the accident. His expert must be under the statute. SeeTEX. CIV. PRAC. & REM.CODE qualified to render an opinion on the applicable standard ANN. § 74.351(r)(6); Scoresby, 346 S.W.3d at 551–52. of care in those circumstances—i.e., the prevention and/or treatment of pressure ulcers in the context of ICU/trauma First, Spohn argues that because du Bois and Dr. Starer 2 identified different conduct as breaches of the standard of care. We are not persuaded by Castro's argument to the contrary. care, their reports, taken together, are inherently inconsistent. See Fung v. Fischer, 365 S.W.3d 507, 530 (Tex.App.-Austin 2 We note that neither du Bois nor Dr. Starer's reports 2012), overruled on other grounds, Certified EMS, Inc. v. foreclose the possibility that they are qualified in this Potts, 392 S.W.3d 625 (Tex.2013) (“Reliable expert opinion case and may need only to connect the experience should ... be free from internal inconsistencies.”). Spohn they have gained in their thirty-plus year careers to contends that du Bois identified only two breaches in her the conditions in this case. See infra sections V, VI report: that the nurses caring for Castro failed to make (remanding for entry of an order granting Castro a thirty- accurate records and failed to create an appropriate treatment day extension to amend his reports). During his thirty- plan for the prevention of pressure ulcers. Spohn contends day extension, see id., Castro is also entitled to serve that Dr. Starer likewise identified only two breaches of care the reports of additional experts. See In re Buster, 275 in his report: the nurses' failure to correctly use Castro's bed S.W.3d 475, 477 (Tex.2008). and failure to turn Castro more frequently. In our review of *5 While “[t]he qualification of a witness as an expert is [a du Bois's report, we found that she also identified as breaches matter] within the trial court's discretion,”Larson, 197 S.W.3d of the standard of care that the nurses caring for Castro at 304 (citing Broders, 924 S.W.2d at 151), such discretion failed to reposition Castro as needed, failed to assess his skin

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013) 2013 WL 6576041

after each turn, and failed to properly assess and provide for Castro's nutritional needs. And again, in our review of Dr. Finally, Spohn argues that the reports do not adequately Starer's report, we found that he also identified as breaches establish causation because they do not “explain how taking of the standard of care that the Spohn staff caring for Castro any particular action would have prevented the development “failed to properly develop a care plan for ulcer prevention” of a pressure ulcer given the complex medical issues involved and “failed to maintain an accurate and complete clinical in [Castro]'s care.” Spohn argues that “[w]ithout addressing record.”In light of the full range of conduct identified by [these] critical issues, it is impossible to know if [Castro]'s du Bois and Dr. Starer, we disagree with Spohn that the pressure ulcer could have been prevented.” On this account, breaches identified in the separate reports are contradictory; we agree with Spohn. Although du Bois and Dr. Starer's for that matter, having examined the reports in their entirety, reports go into great detail about the procedures necessary we note that du Bois and Dr. Starer identified largely the same to prevent pressure ulcers in standard conditions, they do breaches. not address the specific conditions present in Castro's care. As discussed in detail above, Castro's claim involves his *6 But assuming for the sake of argument that the breaches development of a pressure ulcer while he was being treated in the reports are limited to those identified by Spohn, in Spohn's ICU over the course of several months for severe we believe that Dr. Starer's report identified additional injuries he suffered in an automobile accident. Neither du instances of conduct that breached the standard of care. Read Bois nor Dr. Starer discusses Castro's injuries in the context together in the manner in which they are characterized by of these conditions. And the omission of this context renders Spohn, the reports are not contradictory, but provide a more any conclusion on the cause of Castro's injuries incomplete. complete picture of the instances of conduct giving rise to Because Castro's reports do not adequately address the Castro's claim. SeeTEX. CIV. PRAC. & REM.CODE ANN. § causation element, they did not provide a basis for the 74.351(i) (“Nothing in this section shall be construed to mean trial court to conclude that Castro's claims have merit. See that a single expert must address all liability and causation Palacios, 46 S.W.3d at 879. The reports therefore do not issues with respect to all physicians or health care providers amount to a good faith effort to comply with the statute and or with respect to both liability and causation issues for are deficient. See Scoresby, 346 S.W.3d at 556 (requiring that a physician or health care provider.”). Thus, we are not the report adequately address all the elements to qualify as persuaded by Spohn's argument in this regard, and the trial a good-faith effort). The trial court abused its discretion in court did not abuse its discretion in denying Spohn's motion denying Spohn's objections and motions to dismiss on this to dismiss on this basis. Spohn's second issue is overruled in basis. See Walker, 111 S.W.3d at 62. Spohn's second issue is so far as it depends on this argument. sustained as to its causation argument.

Spohn next argues that du Bois's report, in particular, did no more than “state that nurses failed to keep accurate records V. Thirty–Day Extension or to implement appropriate plans of care.”Spohn argues that du Bois was required to “state what documentation *7 Although Castro's expert reports are deficient in that was inaccurate, what documentation was lacking, on what they do not establish the authors' qualifications and do not dates it was wrong or missing and who was responsible adequately address causation, we do not believe the reports for that charting.”But du Bois's report includes the exact are fatally deficient, or “no report” under the statute. Both elements that Spohn claims are required. Du Bois refers to meet the minimum qualifications set out in Scoresby—both specific medical record dates and page numbers throughout du Bois and Dr. Starer are individuals with expertise who her report and specifically identifies what she characterizes opine about Castro's injuries in great detail and implicate the as the deficiencies in those records. Where du Bois points conduct of Spohn's staff. See346 S.W.3d at 557. Because out that certain details are missing from the records, she Castro met these minimum qualifications, he is entitled to one does not specify page numbers, but as she is pointing to thirty-day extension to cure the deficiencies in his reports. the absence of something, we cannot fault her for failing to SeeTEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c); specify where that missing detail is not located. In short, we see also Scoresby, 346 S.W.3d at 557 (holding that all are not persuaded by Spohn's generalized assertions in this deficiencies, whether in an expert's opinion or qualifications, regard. Again, Spohn's second issue is overruled in so far as are subject to being cured). This disposition is consistent with it depends on this argument. the goal of the statute, which is to deter frivolous claims but

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Christus Spohn Health System Corp. v. Castro, Not Reported in S.W.3d (2013) 2013 WL 6576041

a thirty-day extension to amend his expert reports. SeeTEX. not dispose of claims regardless of their merits. See Scoresby, CIV. PRAC. & REM.CODE ANN. § 74.351(c). 346 S.W.3d at 554.

All Citations VI. Conclusion Not Reported in S.W.3d, 2013 WL 6576041 We reverse the order of the trial court denying Spohn's motion to dismiss and remand for entry of an order granting Castro

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without 446 S.W.3d 113 reference to guiding rules or principles. Court of Appeals of Texas, Houston (1st Dist.). Cases that cite this headnote Angela CORNEJO and Carlos Portillo, Appellants v. [3] Appeal and Error Stephen J. HILGERS, M.D., Appellee. Power to Review When reviewing matters committed to a trial No. 01–13–00752–CV. | Aug. 14, 2014. court's discretion, an appellate court may not substitute its own judgment for that of the trial Synopsis court. Background: Mother sued obstetrics and gynecology resident for medical malpractice in connection with brain Cases that cite this headnote injury sustained by her newborn child. Defendant moved to dismiss mother's claims on grounds that one of mother's experts was not qualified to address causation, and her [4] Appeal and Error medical expert reports were insufficient as to element of Abuse of discretion causation. The 190th District Court, Harris County, granted A trial court does not abuse its discretion motion. Mother appealed. merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance.

Holdings: The Court of Appeals, Terry Jennings, J., held that: Cases that cite this headnote

[1] mother's expert was qualified to opine on issue of causation, and [5] Health Affidavits of merit or meritorious defense; [2] mother's expert reports were sufficient as to causation. expert affidavits If a health care defendant files a motion to dismiss challenging the adequacy of a claimant's Reversed and remanded. expert report, a trial court must grant the motion if it appears, after a hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report, West Headnotes (14) under Medical Liability Act, or is not sufficiently specific to provide a basis for the trial court to [1] Appeal and Error conclude that the claims have merit. V.T.C.A., Dismissal or nonsuit before trial Civil Practice & Remedies Code § 74.351. Appellate review of a trial court's decision on a Cases that cite this headnote motion to dismiss a health care liability claim is for an abuse of discretion. [6] Health Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits [2] Appeal and Error In setting out the expert's opinions in support of Abuse of discretion a health care liability claim, the expert's report must provide enough information to fulfill two purposes: first, it must inform the defendant of the specific conduct the plaintiff has called into

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

question, and, second, it must provide a basis standard of care and the injuries suffered by for the trial court to conclude that the claims patient's baby upon delivery and, thus, presented have merit. V.T.C.A., Civil Practice & Remedies an objective, good faith effort to comply with Code § 74.351. the statute governing expert reports in health care liability actions; reports explained link between Cases that cite this headnote brain injuries suffered by baby and resident's failure to recognize patient's risk factors and [7] Evidence the late deceleration on the fetal heart monitor, Due care and proper conduct in general and physician's failure to take action before delivery, by admitting patient to the hospital and Though not certified in neonatology, pediatric continuing the fetal monitoring. V.T.C.A., Civil neurology, or maternal-fetal medicine, board- Practice & Remedies Code § 74.351(r)(6). certified OB/GYN (obstetrics/gynecology) physician was qualified based on his experience Cases that cite this headnote and expertise to render expert opinion in medical malpractice action as to alleged cause of brain injury sustained by newborn child as result of [11] Health failing to admit mother to hospital, continue to Affidavits of merit or meritorious defense; monitor fetal heart rate, the fetus for progressive expert affidavits hypoxia and ischemia, and expedite delivery. In assessing the sufficiency of an expert report in Rules of Evid., Rule 702. a health care liability action, a trial court may not draw inferences; instead, it must exclusively rely Cases that cite this headnote upon the information contained within the four corners of the report. V.T.C.A., Civil Practice & [8] Evidence Remedies Code § 74.351. Determination of question of competency Cases that cite this headnote Qualification of witness as expert is within trial court's discretion. Rules of Evid., Rule 702. [12] Health Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits [9] Evidence No particular words or formality are required in Knowledge, experience, and skill in general expert report under Medical Liability Act, but bare conclusions will not suffice. V.T.C.A., Civil A physician need not practice in the particular Practice & Remedies Code § 74.351(r)(6). field about which he is testifying to qualify as an expert witness so long as he can demonstrate that Cases that cite this headnote he has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify him to give an opinion [13] Health on that subject. Rules of Evid., Rule 702. Affidavits of merit or meritorious defense; expert affidavits Cases that cite this headnote In a health care liability action, the requirement that an expert report provide causal relationship [10] Health between the failure to meet the applicable Affidavits of merit or meritorious defense; standard of care and the plaintiff's injury, harm, expert affidavits or damages claimed is established by proof that the negligent act or omission constituted Medical expert reports, provided a fair summary a substantial factor in bringing about the harm of the causal relationship between obstetrics and and absent the act or omission, the harm would gynecology resident's failure to meet appropriate

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

not have occurred. V.T.C.A., Civil Practice & 1 See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a) Remedies Code § 74.351(r)(6). (10) (Vernon Supp. 2013).

Cases that cite this headnote 2 See id. § 74.001(a)(13) (Vernon Supp. 2013). 3 Defendants Mae Kathleen Borchardt, M.D., formerly [14] Health known as Mae Kathleen Hayes, M.D., John Cecil Affidavits of merit or meritorious defense; McBride, M.D., Bridgette Parish, M.D., Danielle expert affidavits Niemeyer, R.N., Jamie Respondek, R.N., Mayoor Bhatt, An expert report need not marshal all of the M.D., Sharon Ann Woodson, R.N., and St. Joseph Medical Center are not parties to this appeal. plaintiff's proof necessary to establish causation at trial in a health care liability action, and it 4 Although Cornejo and Portillo present three issues, their need not anticipate or rebut all possible defensive first issue, in which they generally challenge the trial theories that may ultimately be presented to court's order dismissing their claims is, in fact, part of the trial court; rather the expert must simply their second and third issues. Accordingly, we address provide some basis that a defendant's act or Cornejo and Portillo's two substantive issues. omission proximately caused injury and he must 5 See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) explain the basis of his statements and link his (Vernon Supp. 2013). conclusions to the facts. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6). We reverse and remand.

Cases that cite this headnote Background

In their amended petition, Cornejo and Portillo allege that on Attorneys and Law Firms December 2, 2010, Cornejo, who was forty weeks' pregnant, presented at St. Joseph Medical Center with gestational *115 L. Todd Kelly, The Carlson Law Firm, P.C., Austin, hypertension and headaches. Dr. Hilgers, an obstetrics and TX, for Appellants. gynecology resident, examined Cornejo and conducted an ultrasound and electronic fetal monitoring, which, at 8:28 John C. Landa, Jr., Lucille Reiter King, Lapin & Landa, LLP, p.m., showed increasing contractions and an irregularity in Houston, TX, for Appellee. the fetal heart rate. Nevertheless, Hilgers discharged Cornejo Panel consists of Justices JENNINGS, HIGLEY, and at 8:40 p.m., with instructions to return in four days. SHARP. Cornejo returned to St. Joseph thirteen hours later with elevated blood pressure, headaches, “visual disturbances,” and reporting decreased fetal activity. It was determined OPINION that the onset of Cornejo's labor occurred at 5:00 a.m. TERRY JENNINGS, Justice. on December 3rd. Nurses J. Respondek and D. Niemeyer placed Cornejo on a fetal heart rate monitor, the readings In this interlocutory appeal, 1 appellants, Angela Cornejo of which were “reassuring, with good variability.” 6 Minutes and Carlos Portillo, challenge the trial court's dismissal of *116 later, however, there was a “dramatic decrease in fetal their health care liability claims 2 against appellee, Stephen heart rate variability,” and Cornejo was taken to labor and Hilgers, M.D. 3 In two issues, 4 Cornejo and Portillo contend delivery. At 11:10 a.m., Drs. K. Hayes and B. Parish attended that the trial court erred in dismissing their claims against Dr. Cornejo, whose membranes were artificially ruptured, and Hilgers on the grounds that one of their medical experts is not they noted the presence of “thick meconium.” Shortly qualified to opine on the issue of causation and both of their thereafter, the fetal monitor showed “minimal variability” and

medical expert reports 5 are insufficient as to causation. “late decelerations.” 7 At 11:20 a.m., Cornejo signed consent forms for a Cesarean section delivery. St. Joseph personnel

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

then repositioned Cornejo and continued to monitor the fetal amended reports. Cornejo and Portillo stipulated that Dr. heart strip, which showed “occasional late decelerations” with Yoder's expert report would not be offered as to Hilgers. “no accelerations of the fetal heart.” Cornejo was sent to the operating room shortly after 1:00 p.m., and her baby was 9 See TEX. CIV. PRAC. & REM.CODE ANN. § delivered at 1:41 p.m. Although the baby was “blue” and did 74.351(a). not cry, she was resuscitated. Cornejo and Portillo then filed and served Dr. Hall's amended medical expert report. As Dr. Hilgers notes in his brief on 6 A baby's heart rate is monitored as a means of appeal, Hall's curriculum vitae does not appear in the record assessing the baby's oxygenation, including oxygenation before us. In his amended report, however, Hall notes that he of the baby's brain. See Morrell v. Finke, 184 S.W.3d is board certified in obstetrics and gynecology, is licensed to 257, 262 (Tex.App.-Fort Worth 2005, pet. denied). A practice medicine in the state of Colorado, is affiliated with fetal heart monitor strip is read at regular intervals several hospitals, and serves as an assistant clinical professor to determine whether the baby's heart rate reflects “hypoxia,” a deficiency of oxygen reaching the tissues at the University of Colorado. Hall further states: of the body that could lead to depletion of the baby's I am familiar with the standard of care applicable to oxygen reserves over time, resulting in brain damage. the management of medical and obstetrical complications See id. A fetal heart monitor strip will be either “reassuring” or “nonreassuring.” See id. Following a in pregnancy, management of labor, use of Pitocin, contraction, “reassuring” accelerations show that the interpretation of electronic fetal monitoring (EFM), baby is oxygenated and tolerating labor. See id. at 263. A abnormal fetal heart rate patterns, and evidence of fetal normal variation in the fetal heart rate is also a reassuring hypoxia as predicted by the fetal heart rate pattern. I am sign of fetal well-being. See id. at 262–63. also very well aware, that regardless of who is caring for 7 the laboring patient, whether Ob/Gyn, resident, or labor In his medical expert report, Dr. Michael L. Hall, Cornejo and delivery nurse, that the standards of care regarding and Portillo's expert, explained that “[d]ecreased long- recognition of ominous findings on fetal monitor strip are term fetal heart rate variability” and “persistent late the same.... decelerations” in a baby's heart rate are “nonreassuring” and can be “ominous” signs of hypoxia or asphyxia. *117 As an obstetrician, I have cared for numerous Cornejo's baby was later diagnosed with hypoxic-ischemic pregnant patients with the same or similar clinical encephalopathy, a severe, permanent brain injury caused circumstances as those [Cornejo] presented with.... I have by a lack of oxygen and blood flow. 8 At two months of taught nurses and residents fetal monitoring and have age, she showed a history of renal injury, secondary to worked closely with nurses and residents for 34 years, metabolic acidosis and hypoxic injury, and mild spasticity and I am familiar with what reasonable and prudent in all extremities. At two years of age, she presented with nurses, residents and obstetricians would or would not seizures and significant developmental impairment. do in response to abnormal electronic fetal heart patterns and management of Pitocin. The standards of care in the 8 interpretation of electronic fetal monitoring, recognition See Morrell, 184 S.W.3d at 275 & n. 12. of abnormal patterns, and recognition of the need for Cornejo and Portillo sued Dr. Hilgers for negligence, seeking intervention [are] the same across these professionals, damages for past and future medical expenses and mental although the roles of each may be different in intervening anguish. To support their claims, they timely filed and served for the same. upon Hilgers medical expert reports 9 authored by Michael L. Hall, M.D., Jerry J. Tomasovic, M.D., and Bradley A. .... Yoder, M.D. Hilgers objected to Drs. Hall's and Tomasovic's Based on my education, training, years of experience, reports on the ground that they failed to sufficiently address familiarity with the medical literature and my board the element of causation. Hilgers also objected to Hall's report certification in OB/GYN, I am familiar with the probable on the ground that Hall is not qualified to opine on the issue causes of ... hypoxic-ischemic injuries in babies generally of causation. The trial court sustained Hilgers's objections and with the probable causes of the injuries to [Cornejo's and allowed Cornejo and Portillo thirty days to file and serve baby] in this case. Specifically, during my many years of practice, I ... read the medical literature, reviewed

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

case studies and have followed the care for babies with the same or similar clinical presentation as [Cornejo's He added: baby]. I have kept current on the medical studies and We know that the deterioration would literature regarding babies who have suffered hypoxic- have been evident given the difference ischemic encephalopathy (HIE) from events at or around in the quality of the fetal monitor the time of birth. I have also seen infants in my education, tracing ... between December 2, 2010 training and experience who have suffered from hypoxic- before the late deceleration at the ischemic encephalopathy (HIE) from events at around the end and the tracing the following time of birth. morning when she presented again to the Hospital. Tracings do not suddenly Dr. Hall goes on to explain that he reviewed Cornejo's become nonreassuring unless there prenatal records, labor and delivery records, and the is an acute cord accident that we electronic fetal monitor strip. He notes that the applicable know did not occur in this case. standard of care for Dr. Hilgers was to recognize certain In reasonable medical probability, risk factors with which Cornejo presented and are “well there was plenty of opportunity to known to increase the risk of fetal intolerance to the uterine see the deterioration occur had she environment, increasing the foreseeability of progressive been monitored, and any ordinary, hypoxia and ischemia and need for expeditious delivery reasonably prudent obstetrician (or of the fetus.” Specifically, Cornejo, prior to the time resident acting under his or her that Hilgers discharged her, presented with decreased fetal supervision), would have delivered movement, gestational hypertension, suspected intrauterine [Cornejo's baby] before she actually growth restriction, and late deceleration on the electronic fetal presented again the following morning monitor. Due to the risk factors present, and because there was according to the chronology. a “late deceleration just prior to the end of the fetal monitor strip” at 8:28 p.m. on the evening that Hilgers examined As to causation, Dr. Hall opines that Dr. Hilgers “should Cornejo, Hall opines that Hilgers had a duty to admit Cornejo have known” that the risk factors present in this case “may to the hospital, rather than discharge her, and continue to foreseeably cause fetal intolerance even to normal labor monitor the fetal heart rate, the fetus for progressive hypoxia which may induce sufficient stress to produce a lack of and ischemia, and the need to expedite delivery. blood flow to the fetus (hypoxia), which foreseeably may produce acidosis (asphyxia), which may foreseeably cause Dr. Hall further opines that Dr. Hilgers breached “the standard brain injury.” And he notes that, of care of any resident providing obstetrical services” by: [Cornejo's baby] suffered progressive • “failing to recognize the risk factors at the time of the hypoxia and acidosis, as a result of premature discharge on December 2, 2010, discuss those the delay in delivery caused by Dr. with the ‘OB/GYN specialist’ and admit [Cornejo] to the Hilgers'[s] ... breaches in the standard Hospital”; of care. Because [Cornejo] was not • “discontinuing fetal heart rate monitoring on December kept overnight, she arrived in a more 2, 2010, in the face of a late deceleration (a critical state, setting into motion a potentially ominous finding suggestive of uteroplacental chain of events which required more insufficiency given the risk factors discussed above)”; timely action after [she] returned [the next morning] with a persistently • “failing to continuously monitor the fetal heart rate and progressively abnormal electronic patterns on the evening and morning of December 2–3, fetal monitor pattern which was not 2010”; and resolved.

• “failing to deliver [Cornejo's baby] due to a progressively Dr. Hall further opines that, deteriorating *118 fetal status which would have been evident on fetal monitoring.”

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

cannot “address whether the standard of care was breached more likely than not, had [Cornejo's baby] been delivered in doing so,” he is able to opine that “the late deceleration by Dr. Hilgers and/or the OB/GYN specialist assigned of the fetal heart most likely relates to the beginning of a to supervise him, she would have been neurologically period of hypoxia.” He further opines that, “to a reasonable intact at the time of birth, would not have had difficulty degree of medical probability (and in reliance upon the with the newborn resuscitation, would not have developed expert opinions of Dr. Hall), ... [Cornejo's baby] suffered pneumothoraces, would not have had an additional episode a significant portion of her injuries due to the failure to of documented severe metabolic acidosis, and would likely deliver her before progressive hypoxia and ischemia deprived be normal today.... her brain tissue of well-oxygenated blood and neuro[l]ogic injury occurred in utero.” And, “[h]ad she been monitored .... throughout the night rather than discharged by Dr. Hilgers [T]he care rendered [Cornejo] by Dr. Hilgers was deficient and the hospital personnel, ... her progressive intolerance —falling well below the standard of care owed to of the uterine environment would have been evident and this patient.... Within a reasonable degree of medical the opportunity would have presented itself to deliver her probability, the negligent breaches in the standard of care timely (as opined by Dr. Hall) and before permanent [and] by ... Dr. Hilgers substantially contributed to the direct and irreversible brain damage occurred.” “In other words,” proximate cause of the hypoxic ischemic encephalopathy according to Tomasovic, “had she been delivered before her noted in [Cornejo's baby]. mother presented again the next morning to the Hospital, she would not have suffered her injuries.” Cornejo and Portillo also filed and served Dr. Hilgers with Dr. Tomasovic's amended expert report. Although Tomasovic's Dr. Hilgers moved to dismiss Cornejo and Portillo's claims curriculum vitae also does not appear in the record before on the grounds that Dr. Hall “is not qualified to address us, he, in his amended report, notes that he is a board- causation” and the amended medical expert reports by Drs. certified pediatric neurologist and has been in private practice Hall and Tomasovic are insufficient as to the element for twenty-eight years. He “remain[s] actively supportive of causation because they are “inherently grounded in of two major medical center neonatal intensive care units speculative assumptions.” Specifically, Hilgers argued that and [has] been involved in the care of neonates and infants the experts' theories that “had [Cornejo] been kept in the who have experienced hypoxic-ischemic encephalopathy and hospital longer on 12/2, the fetal heart tracing would, at some hypoglycemia.” point or points that night, have shown a pattern indicative of fetal deterioration,” and, “based on the assumed patterns on Dr. Tomasovic notes that he met with Cornejo's child the heart tracing, at some unspecified time during the night on January 15, 2013 to address her “current neurologic of 12/2 or the early morning of 12/3, a health care provider condition as it relates to events involving her birth and would have interpreted the situation as requiring a cesarean subsequent treatment, and whether there is medical causation delivery and proceeded with delivery” were conjectural. After between such treatment” and her condition. After noting a hearing, the trial court, without stating its reasons, granted his discussion with her parents about the child's behavior Hilgers's motion to dismiss Cornejo and Portillo's health care and development and his own observations, Tomasovic liability claims. states *119 that the child's “findings [are] consistent with microcephaly, a mild hemiparesis with motor coordination issues, and an encephalopathic condition with impaired Standard of Review expressive language.” He concludes that “it is medically probable” that when she reaches adulthood, Cornejo's child [1] [2] [3] [4] We review a trial court's decision on a “will not be able to be independent or employable.” motion to dismiss a health care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. After his review of Dr. Hall's report and the medical records v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Gray v. CHCA of Cornejo and her baby, Dr. Tomasovic observes that Bayshore L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston “Cornejo was evaluated on December 2nd, 2010, for transient [1st Dist.] 2006, no pet.). A trial court abuses its discretion blood pressure elevations which were stable resulting in her if it acts in an arbitrary or unreasonable manner without discharge home on that date at 20:29 hours.” Although he reference to guiding rules or principles. Jelinek v. Casas,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

328 S.W.3d 526, 539 (Tex.2010). When reviewing matters question, and, second, it must provide a basis for the trial court committed to a trial court's discretion, we may not substitute to conclude that the claims have merit. Scoresby, 346 S.W.3d our own judgment for that of the trial court. Bowie Mem'l at 553–54. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would Dr. Hall's Qualifications in a similar circumstance. Harris Cnty. Hosp. Dist. v. Garrett, [7] In their second issue, Cornejo and Portillo argue that, 232 S.W.3d 170, 176 (Tex.App.-Houston [1st Dist.] 2007, no to the extent the trial court granted Dr. Hilgers's motion pet.). to dismiss their claims on the ground that Dr. Hall is not qualified to address the issue of causation, it erred because Hall's extensive expertise and training qualify him “to recognize the risk and to prevent the injury” suffered *120 Sufficiency of Expert Reports by Cornejo's baby and “to understand the causal link to” the baby's “neurologic injury” due to Hilgers's breach of In their two issues, Cornejo and Portillo argue that the trial the pertinent standard of care. In his motion to dismiss court erred in dismissing their claims against Dr. Hilgers Cornejo and Portillo's claims, Hilgers argued that Hall because, contrary to his assertions, Dr. Hall is qualified to “is not qualified to address causation” because he “is not opine on the issue of causation and both Drs. Hall and certified in neonatology, pediatric neurology, or maternal- Tomasovic adequately address the issue in their amended fetal medicine.” And he complained that Hall “does not treat medical expert reports. 10 newborns.”

10 The applicable standard of care and the manner in which To be qualified to opine on the causal relationship between Dr. Hilgers allegedly breached that standard are not at a defendant-physician's alleged failure to meet an applicable issue in this appeal. standard of care and a plaintiff's injury, the author of an A health care liability claimant must timely provide each expert report must be a physician who is qualified to render defendant health care provider with an expert report. See opinions on such causal relationships under the Texas Rules TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon of Evidence. TEX. CIV. PRAC. & REM.CODE ANN. § Supp. 2013); Gray, 189 S.W.3d at 858. The report must 74.351(r)(5); see also id. § 74.403(a) (Vernon 2011) (“[A] provide a “fair summary” of the expert's opinions as of person may qualify as an expert witness on the issue of the date of the report regarding the applicable standards of the causal relationship between the alleged departure from care, the manner in which the care rendered by the health accepted standards of care and the injury, harm, or damages care provider failed to meet the standard, and the causal claimed only if the person is a physician and is otherwise relationship between that failure and the injury, harm, or qualified to render opinions on that causal relationship under damages claimed. See TEX. CIV. PRAC. & REM.CODE the Texas Rules of Evidence.”). ANN. § 74.351(r)(6). The expert report requirement may be satisfied by utilizing more than one expert report, and a court *121 An expert witness may be qualified on the basis of may read the reports together. See id. § 74.351(i). knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects if the [5] [6] If a defendant files a motion to dismiss challenging testimony would “assist the trier of fact” in understanding the adequacy of a claimant's expert report, a trial court must the evidence or determining a fact issue. TEX.R. EVID. 702. grant the motion if it appears, after a hearing, that the report Thus, a plaintiff must show that her expert has “knowledge, does not represent an objective good faith effort to comply skill, experience, training, or education” regarding the with the definition of an expert report or is not sufficiently specific issue before the court that would qualify the expert to specific to provide a basis for the trial court to conclude give an opinion on that particular subject. Broders v. Heise, that the claims have merit. Id. § 74.351(1); Scoresby v. 924 S.W.2d 148, 153–54 (Tex.1996). Santillan, 346 S.W.3d 546, 555–56 (Tex.2011). In setting out the expert's opinions, the report must provide enough [8] [9] Whether an expert witness is qualified under rule information to fulfill two purposes: first, it must inform the 702 lies within the sound discretion of a trial court. Id. at defendant of the specific conduct the plaintiff has called into 151–52. Not every licensed physician is qualified to testify on every medical question. Id. at 152–53. A physician need

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

not practice in the particular field about which he is testifying prudent” residents and obstetricians “would or would not do so long as he can demonstrate that he has knowledge, skill, in response to abnormal electronic fetal heart patterns.” experience, training, or education regarding the specific issue before the court that would qualify him to give an opinion *122 Dr. Hall further notes that, based on his “education, on that subject. Roberts v. Williamson, 111 S.W.3d at 113. training, years of experience, familiarity with the medical Analysis of the expert's qualifications to opine as an expert on literature[,] and ... board certification in OB/GYN,” he is the subject matter of the report is limited to the four corners “familiar with the probable causes of ... hypoxic-ischemic of the expert report or its accompanying curriculum vitae. See injuries in babies generally and with the probable causes of TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a); In re the injuries to [Cornejo's baby] in this case.” During his years McAllen Med. Ctr., Inc., 275 S.W.3d 458, 463 (Tex.2008). of practice, he has “read the medical literature, reviewed case studies and ... followed the care for babies with the same Here, Cornejo and Portillo were required to establish that Dr. or similar clinical presentation” as Cornejo's baby. Hall has Hall is qualified on the basis of “knowledge, skill, experience, “kept current on the medical studies and literature regarding training, or education” to offer opinions concerning the causal babies who have suffered hypoxic-ischemic encephalopathy link between the alleged breaches of the standard of care by (HIE) from events at or around the time of birth.” And he has Dr. Hilgers and the injuries suffered by Cornejo's baby. See “seen infants” in his “education, training and experience who TEX.R. EVID. 702; Roberts, 111 S.W.3d at 122. have suffered from hypoxic-ischemic encephalopathy (HIE) from events at around the time of birth.” In his brief to this Court, Dr. Hilgers argues that Dr. Hall is not qualified to render an opinion as to causation because he is Dr. Hall's report demonstrates that he has specific expertise not a perinatologist, neonatologist, neurologist, “or any other in the areas of obstetrical complications in pregnancy, medical specialist who routinely takes care of babies or who management of labor, interpretation of electronic fetal diagnoses and treats brain injuries”; “does not say he provides monitoring, abnormal fetal heart rate patterns, and evidence ongoing medical care or treatment to neonates (outside of the of fetal hypoxia as predicted by fetal heart rate patterns. delivery process)”; “does not say he diagnoses or treats babies And he specifically notes that he is familiar, based on his with brain damage”; and “does not identify any specific, education, training, and experience, with the probable causes relevant training or experience that would qualify him to of hypoxic-ischemic injuries in babies generally and with the provide expert opinions about how Dr. Hilgers'[s] conduct on probable causes of the injuries to Cornejo's baby in this case. 12/2 caused [Cornejo's baby's] injuries, sustained later.” And This is the type of expertise involved in the claims asserted Hilgers complains that Hall is “not shown to be qualified to by Cornejo and Portillo in this case. address the opinions at the heart of his causation theory: what a fetal monitor tracing ‘would have shown.’ ” In Roberts v. Williamson, the Texas Supreme Court held that a board-certified pediatrician was qualified to render an Dr. Hall, in his expert report, explains that he is board certified expert opinion as to a newborn baby's neurological injuries. in obstetrics and gynecology, is licensed to practice medicine 111 S.W.3d at 121–22. There, after their baby suffered in the state of Colorado, is affiliated with several hospitals, brain damage, parents sued two physicians, alleging that and serves as an assistant clinical professor at the University a malfunctioning ventilator, delay in treatment, and failure of Colorado. He specifically states that he is “familiar with to transfer the baby to a better-equipped hospital combined the standard of care applicable to the management of medical to proximately cause the baby's injuries. Id. at 115. The and obstetrical complications in pregnancy, management of physicians argued that the parents' expert, Dr. McGehee, a labor, ... interpretation of electronic fetal monitoring (EFM), board-certified pediatrician, was not qualified to testify as abnormal fetal heart rate patterns, and evidence of fetal to the nature and extent of the child's neurological injuries hypoxia as predicted by the fetal heart rate pattern.” Hall notes because he was not a neurologist. Id. at 121. The court that, as an obstetrician, he has “cared for numerous pregnant considered that McGehee held certifications in pediatric patients with the same or similar clinical circumstances” advanced life-support and advanced trauma life-support, had as those Cornejo presented to Dr. Hilgers. Moreover, he studied the effects of pediatric neurological injuries, and had has taught residents fetal monitoring and has “worked extensive experience advising parents about the effects of closely with ... residents for 34 years.” And Hall specifically such injuries. Id. at 121–22. Accordingly, it held that the trial explained that he is “familiar with what reasonable and court did not err in admitting McGehee's testimony because,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

although he was not a neurologist, the record reflected that what Hilgers's “calls ‘speculation’ or ‘conjecture’ is, in he had experience and expertise regarding the specific causes fact, the physicians stating to a ‘reasonable [degree of] and effects of the injuries at issue. Id. at 122. medical probability’ what most likely caused” the injuries to Cornejo's baby. In his motion to dismiss Cornejo and In Livingston v. Montgomery, parents sued five physicians Portillo's claims, Hilgers argued that Hall and Tomasovic's after their child suffered severe neurological injuries just amended medical expert reports do not adequately address prior to birth. 279 S.W.3d 868, 870 (Tex.App.-Dallas 2009, the element of causation because their causation theory no pet.). The parents alleged that the physicians failed to “is inherently grounded in speculative assumptions” and “intervene in the face of fetal distress on non-reassuring “conjecture.” fetal heart rate patterns.” Id. The physicians argued that the parents' expert, an obstetrician, was not qualified to opine [11] [12] An expert report must provide a fair summary “as to causation of neurological injuries or conditions—much of the expert's opinions regarding the causal relationship less pediatric neurological injuries.” Id. at 873. The court between the failure of the health care provider to provide explained that the issue was not who was qualified to testify care in accord with the pertinent standard of care and about whether a neurologist could have saved the patient's life the injury, harm, or damages claimed. See TEX. CIV. by treating his neurological injuries. Id. at 877. Rather, the PRAC. & REM.CODE ANN. § 74.351(r)(6). In assessing the causation issue related to the duty of health care providers sufficiency of a report, a trial court may not draw inferences; to recognize potential harm and take appropriate actions. instead, it must exclusively rely upon the information Id. Because the parents' expert had experience in managing contained within the four corners of the report. Wright, 79 labor and delivery, his expertise qualified him to opine on the S.W.3d at 52. “No particular words or formality are required causal relationship *123 between labor and delivery and the [in the expert report], but bare conclusions will not suffice.” complications that stem from labor and delivery, including a Scoresby, 346 S.W.3d at 556. newborn's neurological injuries. Id. [13] [14] A causal relationship is established by proof that Here, based on his experience in managing obstetrical the negligent act or omission constituted a substantial factor complications in pregnancy and labor, interpreting electronic in bringing about the harm and absent the act or omission, fetal monitoring and abnormal fetal heart rate patterns, and the harm would not have occurred. Costello v. Christus Santa recognizing fetal hypoxia as predicted by fetal heart rate Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex.App.- patterns, Dr. Hall is qualified to opine as to the causal San Antonio 2004, no pet.). However, an expert report need relationship between a newborn's injuries and the failure not marshal all of the plaintiff's proof necessary to establish of a resident or obstetrician to recognize complications causation at trial, and it need not anticipate or rebut all in pregnancy and take appropriate actions. The law does possible defensive theories that may ultimately be presented not require him to be “certified in neonatology, pediatric to the trial court. Wright, 79 S.W.3d at 52; Fortner v. Hosp. of neurology, or maternal-fetal medicine” or “treat newborns” the Sw., LLP, 399 S.W.3d 373, 383 (Tex.App.-Dallas 2013, to be qualified to so opine. Accordingly, we hold that the no pet.). The expert must simply provide some basis that a trial court, to the extent that it granted Dr. Hilgers's motion to defendant's act or omission proximately caused injury. Id. at dismiss the claims of Cornejo and Portillo on the ground that 53. And the expert must explain the basis of his statements Hall is not qualified to opine on the issue of causation, abused and link his conclusions to the facts. Id. at 52. its discretion. See Keo v. Vu, 76 S.W.3d 725, 733 (Tex.App.- Houston [1st Dist.] 2002, pet. denied). *124 In his amended medical expert report, 11 Dr. Tomasovic notes that he examined Cornejo's child We sustain Cornejo and Portillo's second issue. specifically to assess her “current neurologic condition as it relates to events involving her birth and subsequent treatment, and whether there is medical causation between such Causation treatment” and her condition. He concludes that his findings [10] In their first issue, Cornejo and Portillo argue that are “consistent with microcephaly, a mild hemiparesis with the trial court, to the extent it granted Dr. Hilgers's motion motor coordination issues, and an encephalopathic condition to dismiss their claims on the ground that Drs. Hall and with impaired expressive language” and “it is medically Tomasovic did not adequately address the issue of causation in their amended medical expert reports, erred because

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

probable” that she “will not be able to be independent or birth are not responsible, at least employable.” in part, for her neurological injuries because they had not yet occurred. 11 The parties dispute whether Drs. Hall's and Tomasovic's All are complicit in failing to rescue original expert reports should be considered with their her from a foreseeably progressive amended reports in evaluating whether the doctors hostile uterine environment which was adequately addressed the causation issue. Dr. Hilgers the source of all of her injuries and quotes extensively from the original expert reports and complications .... points out inconsistencies between the original and amended reports. Cornejo and Portillo argue that once In his amended medical expert report, Dr. Hall states his they submitted amended expert reports, the original familiarity “with the probable causes of ... hypoxic-ischemic reports were supplanted. An amended expert report injuries in babies generally and with the probable causes of served after a thirty-day extension granted by the the injuries to [Cornejo's baby] in this case.” He notes that trial court, as here, supersedes any initial report filed by the claimant. Otero v. Leon, 319 S.W.3d 195, Dr. Hilgers “should have known” that the risk factors present 204–05 (Tex.App.-Corpus Christi 2010, pet. denied); in this case “may foreseeably cause fetal intolerance even to HealthSouth Corp. v. Searcy, 228 S.W.3d 907, 909 normal labor which may induce sufficient stress to produce a (Tex.App.-Dallas 2007, no pet.) (holding that amended lack of blood flow to the fetus (hypoxia), which foreseeably expert report “supplants” previously filed report); see may produce acidosis (asphyxia), which may foreseeably also Packard v. Guerra, 252 S.W.3d 511, 515–16, 534– cause brain injury.” And Hall emphasizes that, 35 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (considering previously filed reports that were refiled *125 [Cornejo's baby] suffered and “supplemented”). Thus, we consider only the progressive hypoxia and acidosis, as a amended expert reports in conducting our analysis. result of the delay in delivery caused In regard to causation specifically, Dr. Tomasovic opines by Dr. Hilgers'[s] ... breaches in the that “the late deceleration of the fetal heart most likely standard of care. Because [Cornejo] relates to the beginning of a period of hypoxia” and “to a was not kept overnight, she arrived in a reasonable degree of medical probability (and in reliance more critical state, setting into motion upon the expert opinions of Dr. Hall), ... [Cornejo's child] a chain of events which required suffered a significant portion of her injuries due to the more timely action after [she] returned failure to deliver her before progressive hypoxia and ischemia [the next morning] with a persistently deprived her brain tissue of well-oxygenated blood and and progressively abnormal electronic neurolo[g]ic injury occurred in utero.” And he emphasizes fetal monitor pattern which was not that, “[h]ad she been monitored throughout the night rather resolved. than discharged by Dr. Hilgers and the hospital personnel, ... Dr. Hall further opines that, her progressive intolerance of the uterine environment would have been evident and the opportunity would have presented more likely than not, had [Cornejo's baby] been delivered itself to deliver her timely (as opined by Dr. Hall) and by Dr. Hilgers and/or the OB/GYN specialist assigned before permanent [and] irreversible brain damage occurred.” to supervise him, she would have been neurologically “In other words,” according to Tomasovic, “had she been intact at the time of birth, would not have had difficulty delivered before her mother presented again the next morning with the newborn resuscitation, would not have developed to the Hospital, she would not have suffered her injuries.” He pneumothoraces, would not have had an additional episode emphasizes that, of documented severe metabolic acidosis, and would likely be normal today.... It is a legal fiction rather than a medical reality to suggest that any of the .... health care providers responsible for making decisions regarding delivery [T]he care rendered [Cornejo] by Dr. Hilgers was deficient from the evening of December 2, —falling well below the standard of care owed to 2010 until the time of [the child's] this patient.... Within a reasonable degree of medical

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

probability, the negligent breaches in the standard of care baby occurred during Hilgers's treatment of Cornejo on by ... Dr. Hilgers substantially contributed to the direct and December 2nd, it is sufficient that, in their reports, the experts proximate cause of the hypoxic ischemic encephalopathy “state[ ] a chain of events that begin with a health care noted in [Cornejo's baby]. provider's negligence and end in personal injury.” McKellar v. Cervantes 367 S.W.3d 478, 485 (Tex.App.-Texarkana Further, Hall explains in great detail how the effects of 2012, no pet.); see Patel v. Williams, 237 S.W.3d 901, 905 hypoxia and asphyxia are cumulative and progressive, the (Tex.App.-Houston [14th Dist.] 2007, no pet.); Costello, 141 role of fetal heart monitoring, and the medical relationship S.W.3d at 249. between the late deceleration on the monitor in this case and the injuries suffered by Cornejo's baby. In McKellar, Cervantes was a patient of Dr. McKellar and saw him regularly for prenatal care of her high-risk In his appellate brief, Dr. Hilgers argues, as he did in his twin pregnancy. 367 S.W.3d at 481. McKellar admitted motion to dismiss, that Drs. Hall's and Tomasovic's expert Cervantes to the hospital during the course of her pregnancy reports are insufficient because their “proximate causation with suspicion of preeclampsia. Id. When the twins were theory ... is inherently grounded in speculative assumptions.” delivered via Caesarean section the day after admission, one Specifically, he characterizes their causation theory thusly: of the babies, “Alek,” was diagnosed with encephalopathy. “had [Cornejo] been kept in the hospital longer on 12/2, the Id. Cervantes brought a health care liability claim against fetal heart tracing would, at some point or points that night, McKellar, and her expert opined in his report that when a have shown a pattern indicative of fetal deterioration,” and, patient is admitted with Cervantes's conditions, the standard “based on the assumed patterns on the heart tracing, at some of care mandated that the fetal well-being be assessed upon unspecified time during the night of 12/2 or the early morning admission, yet Cervantes was not placed on an external fetal of 12/3, a health care provider would have interpreted the monitor until more than twenty-eight hours after admission. situation as requiring a cesarean delivery and proceeded Id. at 487. The expert opined that McKellar's failure to with delivery.” Hilgers notes that Tomasovic asserted no expeditiously discover and address the recurring variable “identifiable injury” to Cornejo's baby during his treatment decelerations with absent long-term variability in Alek's heart and neither expert asserted that “the standard of care required rate resulted in brain damage. Id. at 486. The court of appeals [him] to deliver [Cornejo's baby] during his care.” held that the report sufficiently put McKellar on notice of the conduct about which Cervantes complained and further In their reports, however, Drs. Hall and Tomasovic do provided the trial court with a basis to conclude that her claim more than “speculate.” They explain the link between against McKellar had merit. Id. at 490. the specific injuries suffered by Cornejo's baby and Dr. Hilgers's alleged failure to recognize Cornejo's risk factors We conclude that Drs. Hall and Tomasovic, in their amended and the late deceleration on the fetal heart monitor, and medical expert reports, provided a fair summary of the his failure to take action—by admitting Cornejo to the causal relationship between Dr. Hilgers's failure to meet the hospital and continuing the fetal monitoring. See Jelinek, appropriate standard of care and the injuries suffered by 328 S.W.3d at 539–40 (“[T]he expert must ... explain, to a Cornejo's baby. See TEX. CIV. PRAC. & REM.CODE ANN. reasonable degree, how and why the breach caused the injury § 74.351(r)(6). Thus, the reports presented an objective, based on the facts presented.”). Hall opines that Hilgers's good faith effort to comply with the statute. Id. § 74.351(1); failure to comprehend the dangers and take appropriate Scoresby, 346 S.W.3d at 555–56. Accordingly, we hold that action constituted a substantial factor in bringing about the trial court, to the extent that it granted Hilgers's motion to the injuries suffered by Cornejo's baby and, absent such dismiss the claims of Cornejo and Portillo on the ground that omission, the harm would not have occurred. Likewise, the reports did not adequately address the issue of causation, Tomasovic agrees that had Cornejo's baby been monitored abused its discretion. throughout the night, rather than discharged by Dr. Hilgers and the hospital personnel, “her progressive intolerance of We sustain Cornejo and Portillo's first issue. the uterine environment would have been evident and the opportunity would have *126 presented itself to deliver her timely (as opined by Dr. Hall) and before permanent [and] irreversible brain damage occurred.” Although neither Conclusion Hall nor Tomasovic opines that a specific injury to Cornejo's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Cornejo v. Hilgers, 446 S.W.3d 113 (2014)

We reverse the order of the trial court and remand the case All Citations to the trial court for further proceedings not inconsistent with this opinion. 446 S.W.3d 113

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (2004)

defendant of the specific conduct the plaintiff has called into question, and (2) it must provide 141 S.W.3d 245 a basis for the trial court to conclude that the Court of Appeals of Texas, claims have merit. Vernon's Ann.Texas Civ.St. San Antonio. art. 4590i, § 13.01(l ) (2003). Alicia COSTELLO, Individually and on Behalf 8 Cases that cite this headnote of the Estate of Delia Lozano, Appellant, v. CHRISTUS SANTA ROSA HEALTH [2] Appeal and Error CARE CORPORATION, Appellee. Dismissal or nonsuit before trial Court of Appeals reviews a trial court's dismissal No. 04–03–00597–CV. | June 23, 2004. of a suit for failure to comply with the Texas Medical Liability and Insurance Improvement Synopsis Act under an abuse of discretion standard. Background: Representative of patient's estate brought Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l medical malpractice action against hospital, alleging that ) (2003). patient's death from cardiac arrest was caused by negligent care of hospital emergency room staff. Hospital moved to Cases that cite this headnote dismiss lawsuit on basis that representative's expert reports did not meet requirements of Texas Medical Liability and [3] Evidence Insurance Improvement Act. The 288th Judicial District Cause and effect Court, Bexar County, Martha Tanner, J., dismissed lawsuit with prejudice. Representative appealed. Registered nurse did not qualify as expert to provide her opinion as to cause of patient's death, in medical malpractice action; for nurse to give medical opinion as to cause of patient's death Holdings: The Court of Appeals, Phylis J. Speedlin, J., held necessarily demanded ability to make medical that: diagnosis, but nurse was expressly prohibited under Nursing Practice Act from rendering [1] registered nurse did not qualify as expert to provide her medical diagnoses. V.T.C.A., Occupations Code opinion as to cause of patient's death, and § 301.002(2); Rules of Evid., Rule 702.

[2] report of expert witness as to cause of patient's death was 11 Cases that cite this headnote conclusory, and thus was insufficient to meet requirements of Texas Medical Liability and Insurance Improvement Act. [4] Evidence Due care and proper conduct in general Affirmed. Although it is generally true that a licensed registered nurse has more education and training on medical issues than a lay person, a nursing license does not automatically qualify the West Headnotes (9) registered nurse as an expert on every medical subject in a medical malpractice action. [1] Health 10 Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits To meet the requirements of the Texas Medical [5] Evidence Liability and Insurance Improvement Act, an Necessity of qualification expert report must provide enough information Trial court must ensure that those who purport to fulfill two purposes: (1) it must inform the to be experts truly have expertise concerning the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (2004)

actual subject about which they are offering an Affidavits of merit or meritorious defense; opinion. Rules of Evid., Rule 702. expert affidavits An expert witness's report in a medical 1 Cases that cite this headnote malpractice action is insufficient under Texas Medical Liability and Insurance Improvement [6] Health Act if it merely states the expert's conclusions. Affidavits of merit or meritorious defense; Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l expert affidavits ) (2003). Report of expert witness as to cause of patient's 1 Cases that cite this headnote death, which stated that “[i]f this patient would have been appropriately triaged and evaluated, then in all reasonable medical probability she would have survived,” was conclusory, and thus was insufficient to meet requirements of Texas *247 From the 288th Judicial District Court, Bexar County, Medical Liability and Insurance Improvement Texas, Trial Court No. 2002–CI–03404; Martha Tanner, Act, in medical malpractice action, as expert Judge Presiding. 1 failed to explain causal connection between hospital's claimed omissions and patient's death. 1 The Honorable Frank Montalvo was the presiding judge Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l of the 288th Judicial District Court, Bexar County, ) (2003). Texas in 2002. The Honorable Martha Tanner, presiding judge of the 166th Judicial District Court, signed the 22 Cases that cite this headnote order granting Christus Santa Rosa's amended motion to dismiss.

[7] Health Attorneys and Law Firms Proximate Cause As is true in other types of negligence cases, Andrew E. Toscano, Gene Toscano, Inc., San Antonio, for causation in a medical malpractice action is appellant. established by proof that the negligent act or omission was a substantial factor in bringing Laura A. Cavaretta, Jerry A. Gibson, Plunkett & Gibson, San about the harm and without which the harm Antonio, for appellee. would not have occurred. Sitting: CATHERINE STONE, Justice, SARAH B. 28 Cases that cite this headnote DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice.

[8] Health OPINION Affidavits of merit or meritorious defense; expert affidavits Opinion by: PHYLIS J. SPEEDLIN, Justice. In reviewing the adequacy of an expert witness's report in a medical malpractice case, the court's This case involves the adequacy of expert reports under inquiry is restricted to the four corners of the Texas Medical Liability and Insurance Improvement Act the report, and inferences are not permitted. (“the Act”). The trial court dismissed the plaintiff's medical Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l malpractice suit after it determined the expert reports did not ). satisfy the Act's requirements with respect to causation. We affirm the trial court's judgment. 4 Cases that cite this headnote

[9] Health BACKGROUND

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (2004)

Delia Lozano (“Lozano”) was admitted to the emergency with the Act under an abuse of discretion standard. Palacios, department of Christus Santa Rosa Hospital (“Christus”) with 46 S.W.3d at 878. the chief complaint of chest pain. She was initially “triaged” by the nursing staff and then asked to return to the waiting 2 Repealed by Act of June 2, 2003, 78th Leg., R.S., ch. room. Forty minutes later, while in the waiting room, she 204, § 10.01, 2003 Tex Gen. Laws 847, 884. See TEX. suffered a cardiac arrest and was unable to be resuscitated. CIV. PRAC. & REM.CODE ANN. § 74.351(1) (Vernon Mrs. Lozano's daughter, Alicia Costello (“Costello”), sued Supp.2004) (effective Sept. 1, 2003). the hospital for medical malpractice. Costello filed two expert reports under the Act. The report of Pamela Zanes, A. Pamela Zanes, R.N. R.N. (“Nurse Zanes”) sets forth the applicable standard of [3] [4] [5] In its order of dismissal, the trial court nursing care. The second report by Dr. Steven Schilling (“Dr. found that the report of Nurse Zanes did not establish her Schilling”) states in relevant part: qualifications to express an expert opinion on causation. We agree. Although it is generally true that a licensed registered Patients that present to emergency nurse has more education and training on medical issues than departments with the chief complaint a lay person, a nursing license does not automatically qualify of chest pain, especially in this age the registered nurse as an expert on every medical subject. Cf. group, require immediate triage to Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996) (a licensed an examination room, placement on medical doctor is not automatically qualified to testify as an a telemetry monitor, and a “stat” expert on every medical question). The trial court instead EKG followed by prompt physician must ensure that “those who purport to be experts truly have evaluation.... If this patient would expertise concerning the actual subject about which they are have been appropriately triaged and offering an opinion.” Id.; see also TEX.R. EVID. 702. Here, evaluated, then in all reasonable the relevant inquiry is whether Nurse Zanes has the necessary medical probability she would have expertise to express an opinion about what caused Lozano's survived. death.

The hospital ultimately moved to dismiss the lawsuit claiming [6] In her report, Nurse Zanes establishes that she is the reports did not meet the statutory requirements. After a a registered nurse licensed in the State of Texas. As hearing, the trial court dismissed the lawsuit with prejudice. such, she is governed by the Texas Nursing Practice Act, This appeal resulted. which defines the privileges and limitations of her right to practice professional nursing in this State. See TEX. OCC.CODE ANN. §§ 301.001–.607 (Vernon 2004). Her ANALYSIS license specifically allows her to be compensated for such acts as observing, assessing, evaluating, and caring for a [1] [2] In her sole issue on appeal, Costello contends that person who is ill or injured, but precludes her from “acts of the trial court abused its discretion in determining the expert medical diagnosis.” TEX. OCC.CODE ANN. § 301.002(2) *248 reports did not constitute a good-faith effort to meet the (definition of “professional nursing”). 3 A licensed registered requirements of the Act. See TEX.REV.CIV. STAT. ANN.. nurse who is expressly prohibited by law from rendering a art. 4590i, § 13.01(l ) (Vernon 2003). 2 In order to meet medical diagnosis would also lack the expertise to testify the requirements of the Act, an expert report “must provide on subjects that require making a medical diagnosis. See enough information to fulfill two purposes: (1) it must inform Pace v. Sadler, 966 S.W.2d 685, 690 (Tex.App.-San Antonio the defendant of the specific conduct the plaintiff has called 1998, no pet.) (although qualified to render expert opinion into question, and (2) it must provide a basis for the trial court on nursing standard of care, nurse was not qualified to to conclude that the claims have merit.” Bowie Memorial medically diagnose heart condition); Arlington Mem'l Hosp. Hospital v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing the Found., Inc. v. Baird, 991 S.W.2d 918, 921 (Tex.App.- two-part test set forth in American Transitional Care Ctrs. of Forth Worth 1999, pet. denied) (nurse was not qualified to Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001)). We medically diagnose causation of thermal burns). To give a review a trial court's dismissal of a suit for failure to comply medical opinion on the cause of someone's death necessarily demands the ability to make a medical diagnosis. Nurse

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245 (2004)

[9] Although the Act only requires a “fair summary” of his Zanes is expressly prohibited by law from *249 doing opinions, Dr. Schilling's mere assertion that the patient would that. Accordingly, the trial court properly refused to consider have survived is conclusory and is not sufficient. Nowhere in Nurse Zanes' affidavit on the issue of causation. Dr. Schilling's report does he explain the causal connection 3 between Christus' claimed omissions (failure to appropriately The Texas Nursing Practice Act does not define what triage and evaluate) and Lozano's death. See TEX.REV.CIV. is meant by “acts of medical diagnosis.” See TEX. STAT. ANN.. art. 4590i, § 13.01(r)(6); Wright, 79 S.W.3d OCC.CODE ANN. § 301.002. Taber's Cyclopedia at 53. Dr. Schilling offers no explanation of what medical Medical Dictionary defines “diagnosis” as the use of scientific or clinical methods to establish the information a more timely triage and evaluation would have cause and nature of a person's illness; it defines revealed, nor does he state what would have been done had “medical diagnosis” as the identification of the Christus not failed to act, what treatment would have or could cause of the patient's illness or discomfort. See have been available, that the patient was a candidate for the TABER'S CYCLOPEDIC MEDICAL DICTIONARY unknown treatment, or that the unknown treatment could have (19th ed.2001). or would have been effective. Dr. Schilling's report fails to state how Christus' failure to act was a substantial factor in B. Dr. Schilling bringing about Lozano's death and without which her death [7] [8] The trial court also determined that Dr. Schilling's would not have occurred. See Kramer, 858 S.W.2d at 400. A report was conclusory on the issue of causation. Again, report is insufficient if, as in the instant case, it merely states we agree. The Act requires that an “expert report” provide the expert's conclusions. Palacios, 46 S.W.3d at 879; see also a fair summary of the manner in which the care at issue Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999). failed to meet the applicable standards of care and the causal relationship between that failure and the harm or damages In addition, nowhere in his report does Dr. Schilling explain claimed. See TEX.REV.CIV. STAT. ANN.. art. 4590i, § the medical basis or reasoning for his conclusion that Lozano 13.01(r)(6). As is true in other types of negligence cases, “in all reasonable medical probability” would have survived. causation is established by proof that the negligent act or While no particular term or phrase is required for an omission was a substantial factor in bringing about the harm expert to establish causation, the converse is also true. See and without which the harm would not have occurred. Kramer Wright, 79 S.W.3d at 53. Without more, the magic words v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 400 (Tex.1993). of “reasonable medical probability” provide no evidence of In reviewing the report's adequacy, our inquiry is restricted causation. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 to the four corners of the report. Palacios, 46 S.W.3d at 878. S.W.2d 706, 711–12 (Tex.1997). Inferences are not permitted. Id. Once the trial court determined that the two expert reports Dr. Schilling's report states, “If this patient would have been did not comply with the statutory requirements of the Act, the appropriately triaged and evaluated, then in all reasonable court had no discretion and was required to dismiss the suit medical probability she would have survived.” Costello against Christus with prejudice. See TEX.REV.CIV. STAT. maintains this statement of causation “clearly links” Christus ANN.. art. 4590i, § 13.01(e)(3). We affirm the judgment of to Lozano's death, and therefore meets the causation the trial court. requirement of the Act. Christus responds that the report's one statement about causation fails to explain how the hospital's purported failure to act in a more timely manner caused the All Citations patient's death. 141 S.W.3d 245

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)

between that failure and injury, harm, or damages claimed. V.T.C.A., Civil Practice & 399 S.W.3d 373 Remedies Code § 74.351(i). Court of Appeals of Texas, Dallas. 3 Cases that cite this headnote Ronald FORTNER and Pam Fortner, Appellants v. [2] Appeal and Error HOSPITAL OF THE SOUTHWEST, LLP d/b/a Rulings on Motions Relating to Pleadings The Heart Hospital Baylor Plano; Gary E. Erwin, Court of Appeals reviews a trial court's order on a Jr., M.D.; Jeff Taylor, M.D.; Gregory Messner, motion to dismiss a health care liability claim for D.O.; Health Texas Provider Network d/b/a Dallas an abuse of discretion. V.T.C.A., Civil Practice Diagnostic Association–Plano; James E. Rellas, & Remedies Code § 74.351. M.D., P.A. d/b/a HeartFirst Cardiology Center; Cases that cite this headnote and Medical Edge Healthcare Group, P.A. d/b/ a The Texas Clinic at Prestonwood, Appellees. [3] Health No. 05–11–00971–CV. | April 5, 2013. Affidavits of merit or meritorious defense; expert affidavits Synopsis If an expert report on the basis for a health Background: Patient brought action against physicians and care liability claim omits any of the statutory hospital for health care negligence and lack of informed elements, it cannot be a “good faith effort” for consent. The 101st Judicial District Court, Dallas County, purposes of the rule that a trial court shall grant No. 10–02994–E, Martin Lowy, J., dismissed with prejudice. a motion challenging the adequacy of the expert Patient appealed. 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 [Holding:] The Dallas Court of Appeals, Fillmore, J., held of an expert report. V.T.C.A., Civil Practice & that expert report on basis for patient's claims was adequate. Remedies Code § 74.351(a), (r)(6).

2 Cases that cite this headnote Affirmed in part, reversed in part, and remanded. [4] Health Affidavits of merit or meritorious defense; West Headnotes (12) expert affidavits In determining whether the expert report on the basis for a health care liability claim represents [1] Health a good faith effort to comply with the statutory Affidavits of merit or meritorious defense; requirements, as would preclude the trial court expert affidavits from granting a motion challenging the adequacy Reports may be considered together in of the expert report, the trial court's inquiry determining whether a health care liability is limited to the four corners of the report. claimant provided a report meeting the statutory V.T.C.A., Civil Practice & Remedies Code § requirements to provide a fair summary of 74.351. expert's opinions as of the date of the report regarding applicable standards of care, the Cases that cite this headnote manner in which the care rendered by the physician or health care provider failed to [5] Health meet the standards, and the causal relationship

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)

Affidavits of merit or meritorious defense; be presented to the trial court. V.T.C.A., Civil expert affidavits Practice & Remedies Code § 74.351. For an expert report on the basis for a health 2 Cases that cite this headnote care liability claim to represent an objective good faith effort to comply with statutory requirements, as would preclude the trial court [9] Health from granting a motion challenging the adequacy Affidavits of merit or meritorious defense; of the expert report, the expert report must (1) expert affidavits inform the defendant of the specific conduct the An expert report on the basis for a health plaintiff has called into question, and (2) provide care liability claim need not marshal all the a basis for the trial court to conclude that the plaintiff's proof necessary to establish causation claims have merit. V.T.C.A., Civil Practice & at trial, and the fact a plaintiff may not prove Remedies Code § 74.351. causation at trial does not mean an expert report was inadequate. V.T.C.A., Civil Practice & 3 Cases that cite this headnote Remedies Code § 74.351.

[6] Health 2 Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits [10] Health An expert report on the basis for a health care Affidavits of merit or meritorious defense; liability claim need not marshal all the plaintiff's expert affidavits proof, but it must do more than merely state In an expert report on the basis for a health care the expert's conclusions about the standard of liability claim, the expert must explain the basis care, breach, and causation, and it must explain of his statements and link his conclusions to the the basis of the expert's statements and link his facts. V.T.C.A., Civil Practice & Remedies Code conclusions to the facts. V.T.C.A., Civil Practice § 74.351. & Remedies Code § 74.351. Cases that cite this headnote 2 Cases that cite this headnote

[11] Health [7] Health Affidavits of merit or meritorious defense; Affidavits of merit or meritorious defense; expert affidavits expert affidavits Trial court abused its discretion in concluding An expert report on the basis for a health care that expert report on the basis for patient's health liability claim must contain sufficiently specific care liability claims for direct liability against information to demonstrate causation beyond hospital and physicians and for vicarious liability mere conjecture. V.T.C.A., Civil Practice & against physicians' employers was inadequate, Remedies Code § 74.351. where the report explained that the physicians failed to obtain timely attention and treatment for 3 Cases that cite this headnote patient's vision loss caused by hypotension after coronary artery bypass, resulting in permanent [8] Health blindness in both eyes. V.T.C.A., Civil Practice Affidavits of merit or meritorious defense; & Remedies Code § 74.351. expert affidavits 1 Cases that cite this headnote The statute requiring an expert report on the basis for a health care liability claim does not require that the expert report anticipate and rebut all [12] Health possible defensive theories that may ultimately

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)

Affidavits of merit or meritorious defense; at Prestonwood (Texas Clinic) as a result of appellees' expert affidavits challenges to the sufficiency of appellants' experts' reports. When a health care liability claim involves In a single issue, appellants contend the trial court abused its a vicarious liability theory, either alone or discretion in concluding the expert reports in this case fail to in combination with other theories, an expert comply with the requirement of civil practice and remedies report that meets the statutory standards as code section 74.351 that an expert report demonstrate a causal to the employee is sufficient to implicate the relationship between the failure of a physician or health care employer's conduct under the vicarious liability provider to meet an applicable standard of care and the injury, theory, and if any liability theory has been harm, or damage claimed. We affirm the trial court's judgment adequately covered, the entire case may proceed. in part, reverse the trial's judgment in part, and remand this V.T.C.A., Civil Practice & Remedies Code § cause to the trial court for further proceedings. 74.351.

Facts Alleged by Appellants Attorneys and Law Firms We recite the facts as alleged in appellants' First Amended *375 Jeffrey S. Levinger, Levinger PC, Kenneth B. Petition, their live pleading at the time of the trial court's Chaiken, Robert L. Chaiken, Chaiken & Chaiken, P.C., orders dismissing all claims brought by appellants against Dallas, TX, for Appellants. appellees. On July 14, 2008, appellant Ronald Fortner had an initial consultation with Dr. Messner, after a diagnostic John A. Scully, Russell G. Thornton, Diana Wood, Stan test earlier that day indicated Mr. Fortner suffered from Thiebaud, Michelle E. Robberson, Cory M. Sutker, Dallas, multi-vessel coronary disease and complex plaque. Dr. TX, Aaron D. Nadeua, Joel J. Steed, J., Rockwall, TX, Messner recommended surgery on an emergent basis and Jennifer Gossom Martin, Addison, TX, for Appellees. performed a four vessel quadruple coronary artery bypass graft the following day at Baylor Hospital. Post-operatively, Before Justices FITZGERALD, FILLMORE, and Drs. Messner, Erwin, and Taylor and employees of Baylor 1 RICHTER. Hospital were responsible for providing Mr. Fortner's healthcare. 1 The Honorable Martin E. Richter, Retired Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by “During and/or after surgery,” Mr. Fortner suffered from assignment. various problems including sustained periods of severe hypotension. “Shortly after surgery and contemporaneous with the hypotension,” Mr. Fortner began complaining of OPINION visual disturbances and partial loss of vision, first in one eye and then in the other. Appellants claim Drs. Messner, Erwin, Opinion By Justice FILLMORE. and Taylor and Baylor Hospital nursing or medical staff were aware of Mr. Former's vision-related complaints “when This appeal follows the trial court's dismissal of the health and as Mr. Fortner was experiencing and expressing such care liability claims asserted by appellants Ronald Fortner and complaints in proximity to events which tended to explain Pam Fortner against appellees Hospital of the Southwest, LLP their occurrence, cause and severity” but did not provide or d/b/a The Heart Hospital Baylor Piano (Baylor Hospital), obtain necessary medical intervention. An ophthalmologist Gary E. Erwin, Jr., M.D. (Dr. Erwin), Jeff Taylor, M.D. was not consulted to evaluate Mr. Fortner until about twenty- (Dr. Taylor), Gregory Messner, D.O. (Dr. Messner), Health seven hours after he began complaining about vision loss, by Texas Provider Network d/b/a Dallas Diagnostic Association which time he was blind in both eyes. —Plano (Dallas Diagnostic), James E. Rellas, M.D., P.A. d/ b/a HeartFirst Cardiology Center (HeartFirst), and Medical Edge Healthcare Group, P.A. d/b/a The *376 Texas Clinic

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)

Pursuant to section 74.351 of the civil practice and remedies code, appellants served appellees with an expert report Appellants' Theories of Liability prepared by John Kress, M.D., a board-certified pulmonary Appellants allege Drs. Messner, Erwin, and Taylor, and and critical care medicine physician, in support of their claims. See TEX. CIV. PRAC. & REM.CODE ANN. § Baylor Hospital were negligent and grossly negligent. 2 74.351(a) (West 2011) (in a health care liability claim, Appellants *377 further allege Dallas Diagnostic is claimant shall, not later than the 120th day after the date the vicariously liable for the negligence of its members, Drs. original petition was filed, serve on each party or the party's Erwin and Taylor; HeartFirst and Texas Clinic are vicariously attorney one or more expert reports, with a curriculum vitae liable for the negligence of its employee, Dr. Messner; and of each expert listed in the report for each physician or health Baylor Hospital is vicariously liable for the negligence of its care provider against whom a liability claim is asserted). “employees, agents, ostensible agents and representatives.” Appellees filed objections challenging the sufficiency of Dr. Kress's report as failing to comply with the requirements of 2 Appellants allege Drs. Messner, Erwin, and Taylor were section 74.351. See TEX. CIV. PRAC. & REM.CODE ANN. negligent and grossly negligent by failing to: (1) properly § 74.351(r)(6) (“expert report” means a written report by an and thoroughly examine Mr. Fortner, (2) properly and expert that provides a fair summary of expert's opinions as thoroughly assess and diagnose Mr. Fortner, (3) properly of the date of the report regarding applicable standards of document Mr. Fortner's physical condition, (4) provide Mr. Fortner with adequate and/or timely treatment for his care, the manner in which the care rendered by the physician medical conditions, (5) order required treatment or care or health care provider failed to meet the standards, and the for Mr. Fortner on a timely basis, (6) obtain appropriate causal relationship between that failure and injury, harm, or specialized care and/or consultation for Mr. Fortner's damages claimed). condition which these appellees were unable to diagnose or treat. At the November 2010 hearing on appellees' objections to the Appellants allege Baylor Hospital, either directly sufficiency of Dr. Kress's expert report, the parties announced through its own acts or omissions or under the doctrine on the record their agreement to an extension of time for of respondeat superior, was negligent by: (1) failing to appellants to attempt to cure deficiencies in Dr. Kress's properly document Mr. Fortner's physical condition, expert report regarding the statutory requirement that the (2) failing to properly transmit documentation expert report demonstrate a causal relationship between the concerning Mr. Fortner's physical condition to the alleged failure to met the applicable standard of care and appropriate and necessary recipients, (3) failing to Mr. Fortner's injury. It was the parties' agreement that this properly and timely communicate or ensure proper and timely communication of information pertaining extension would serve as the one-time extension authorized to Mr. Fortner's physical condition or changes in his in section 74.351(c). See TEX. CIV. PRAC. & REM.CODE diagnosis or condition among and between the health ANN. § 74.351(c) (if expert report has not been served within care providers who were responsible for treating the period specified in section 74.351(a) because elements and diagnosing his condition, (4) authorizing the of report are found deficient, court may grant one 30–day “doing and the manner of the acts and omissions in extension to claimant in order to cure the deficiency). At the question,” (5) recklessly employing personnel who hearing, the trial judge stated he believed Dr. Kress's report were unfit, incompetent, or unqualified to perform was deficient with respect to causation. the duties assigned to them, (6) employing personnel in managerial positions who were acting within the [1] Appellants served appellees with a supplemental report course and scope of their employment at the time from Dr. Kress and a report from a new expert, Alfredo A. the negligent acts or omissions occurred and failed to Sadun, M.D., Ph.D., a board-certified ophthalmologist with prevent such acts or omissions, and (7) ratifying or a clinical specialty in neuro-ophthalmology. Appellees filed approving the negligent acts or omissions in question through its officers, managers, supervisors, directors, objections to the reports of Dr. Kress and the report of Dr. administrators, or nurses. Sadun, asserting the reports, whether considered separately or collectively, 3 did not cure the alleged deficiencies, and moved to dismiss appellants' health care liability claims with Dismissal of Appellants' Claims prejudice *378 pursuant to section 74.351(b)(2). See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b)(2) (if health

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)

care liability claimant does not serve expert report as required, 875 (Tex.2001); Nexion Health at Terrell Manor v. Taylor, the trial court must, upon motion by affected physician or 294 S.W.3d 787, 791 (Tex.App.-Dallas 2009, no pet.). A trial health care provider, dismiss claim with prejudice). court has no discretion in determining what the law is or in applying the law to the facts. See Walker v. Packer, 827 3 Reports may be considered together in determining S.W.2d 833, 840 (Tex.1992) (orig. proceeding). An abuse of whether a claimant provided a report meeting the discretion occurs if the trial court clearly fails to analyze or statutory requirements. See TEX. CIV. PRAC. & apply the law correctly. Id. REM.CODE ANN. § 74.351(i). The trial court conducted a March 2011 hearing on appellees objections to appellants experts reports and appellees motions Expert Reports in Health Care Liability Claims to dismiss. The trial court concluded appellants' experts' reports fail to provide any opinion concerning a causal [3] Under section 74.351 of the civil practice and remedies connection between any failure to meet the applicable code, any person who brings suit asserting a health care standards of care and injuries and damages claimed liability claim must, within 120 days of filing the original by appellants, and, therefore, the experts' reports were petition, provide an expert report for each physician or health insufficient and did not satisfy the requirements of section care provider against whom a claim is asserted. TEX. CIV. 74.351. Having concluded appellants' experts' reports did PRAC. & REM.CODE ANN. § 74.351(a). An “expert report” not meet the causation requirement of section 74.351, by is defined as a written report that provides a fair summary order signed June 17, 2011, the trial court granted HeartFirst of the expert's opinions as of the date of the report regarding and Texas Clinic's motion to dismiss and ordered all claims applicable standards of care, the manner in which the care brought by appellants against HeartFirst and Texas Clinic rendered by the physician or health care provider failed dismissed with prejudice. By order signed September 26, to meet the standards, and the causal relationship between 2011, the trial court granted the motions to dismiss of Drs. that failure and the injury, harm, or damages claimed. Id. Messner, Erwin, and Taylor, Dallas Diagnostic, and Baylor § 74.351(r)(6); see also Bowie Mem'l Hosp. v. Wright, 79 Hospital and ordered all claims brought by appellants against S.W.3d 48, 51 (Tex.2002). When a plaintiff sues more than one defendant in connection with a health care liability them dismissed with prejudice. 4 Appellants filed this appeal claim, the expert report must set forth the standard of care of the trial court's dismissal of their health care liability applicable to each defendant, show how that defendant's claims. conduct failed to meet *379 that standard, and explain the causal relationship between each defendant's individual acts 4 Section 74.351(b)(1) provides that if an expert report and the injury, harm, or damages claimed. See TEX. CIV. has not been served within the time period specified, the PRAC. & REM.CODE ANN. § 74.351(a), (r)(6); see also trial court, on a proper motion, shall award “reasonable Scoresby v. Santillan, 346 S.W.3d 546, 555–56 (Tex.2011); attorney's fees and costs of court incurred by the Eichelberger v. St. Paul Med. Ctr., 99 S.W.3d 636, 638 physician or health care provider.” See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b)(1). In its (Tex.App.-Dallas 2003, pet. denied). If a report omits any of September 26, 2011 order, the trial court noted Drs. these statutory elements of section 74.351(r)(6), it cannot be Messner, Erwin, and Taylor, Dallas Diagnostic, and a good faith effort. Palacios, 46 S.W.3d at 879. Baylor Hospital waived recovery of attorneys' fees for defense of this lawsuit in the trial court and in any [4] [5] A trial court shall grant a motion challenging appellate court. 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 Discussion an expert report in section 74.351(r)(6). TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(0; see also Loaisiga v. Cerda, Standard of Review 379 S.W.3d 248, 260 (Tex.2012). In determining whether the expert report represents a good faith effort to comply with the [2] We review a trial court's order on a motion to dismiss a statutory requirements, the trial court's inquiry is limited to health care liability claim for an abuse of discretion. See Am. the four corners of the report. Eichelberger v. Mulvehill, 198 Transitional Care Ctrs. of Texas v. Palacios, 46 S.W.3d 873, S.W.3d 487, 490 (Tex.App.-Dallas 2006, pet. denied) (citing

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)

Palacios, 46 S.W.3d at 878)). To represent an objective good Dr. Messner was notified. The first consultative evaluation faith effort to comply with statutory requirements, the expert of Mr. Fortner's visual complaints was a neurology report must (1) inform the defendant of the specific conduct consultation the *380 next day (7/17/08) at 9:51 AM.... the plaintiff has called into question, and (2) provide a basis Pulmonary/Critical care consultant (note dated 7/17/08) for the trial court to conclude that the claims have merit. stated “Opthal consult if indicated”. An ophthalmology Leland v. Brandal, 257 S.W.3d 204, 206–07 (Tex.2008); consult was not obtained, however, until 7/17/08 at 17:38, Palacios, 46 S.W.3d at 879. approximately one day after the patient was initially noted to have acute visual changes. The patient was ultimately [6] [7] An expert report need not marshal all the plaintiff's noted to have anterior ischemic optic neuropathy with proof. Wright, 79 S.W.3d at 52. However, it must do permanent blindness in both eyes. more than merely state the expert's conclusions about the standard of care, breach, and causation; it must explain the Whenever a patient experiences visual changes, this basis of the expert's statements and link his conclusions is a medical emergency that requires immediate and to the facts. Id.; Quinones v. Pin, 298 S.W.3d 806, 810 appropriate evaluation. Time is critical. It is my opinion (Tex.App.-Dallas 2009, no pet.). The report must contain that the potential for blindness in a post coronary bypass sufficiently specific information to demonstrate causation graft patient, particularly one who has experienced recent beyond mere conjecture. See Farishta v. Tenet Healthsystem hypotension and anemia, is a foreseeable event. In a Hosps. Dallas, Inc., 224 S.W.3d 448, 453 (Tex.App.-Fort specialty heart hospital, the foreseeability of such an event Worth 2007, no pet.). Thus, courts have reasoned that an would be greater than elsewhere, thus one would expect expert report that describes causation in terms of mere health care providers practicing in such a setting, including possibilities does not accomplish the purpose of providing physicians, nurses and physical therapists, to be trained “a basis for the trial court to conclude that the claims have in identifying and responding to the signs and symptoms merit.” Wright, 79 S.W.3d at 52; see also Quinones, 298 suggestive of potential vision loss. S.W.3d at 815–16. It is my opinion that the applicable standard of care in the critical setting which Mr. Fortner was in, following his surgery—a critical care unit in a specialty heart hospital Appellants' Experts' Reports —is such that immediate ophthalmologic, as well as neurologic, consultation was required for Mr. Fortner upon Appellants served appellees with two reports from Dr. Kress first notice to any member of a the [sic] health care and a report from Dr. Sadun. Appellees challenged the reports team, of any acute change in the patient's vision, and and moved to dismiss appellants' health care liability claims. should have been obtained emergently. As a cardiothoracic surgeon, Dr. Messner should be familiar with and able In Dr. Kress's July 8, 2010 expert report, he states his opinions to foresee the potential for ischemic injury to the brain are given “within a reasonable degree of medical certainty and/or eyes given a past medical history of hypertension or probability.” He indicates that he is familiar with the and peri-operative anemia and hypotension. As critical standard for delivery of healthcare in a critical or intensive care physicians generally, and especially in a specialty care setting, “including the care provided by surgeons whose heart hospital, Drs. Erwin, Taylor, and the PULM/CC patients are in that setting, critical care specialists, nurses, PHYSICIAN (if other than Drs. Taylor and Erwin) should physical therapists, and other health care providers and allied be familiar with and able to foresee the potential for health care providers who practice or participate in the care ischemic injury to the brain and/or eyes given a past of patients in a critical care setting.” His first report includes medical history of hypertension and peri-operative anemia the following: and hypotension. Nurses and physical therapists in such a setting should be trained to immediately procure immediate On post operative day one (7/16/08) Mr. Fortner noted physician attention for any patient who complains of visual visual changes. A physical therapist initial evaluation changes. noted a “requirement for assistance secondary to visual impairment” at 3:04 PM. A nurse's note by Karla Jones It is my opinion that the applicable standard of care was on 7/16/08 at 18:10 notes “visual field disturbances....” breached by the physical therapist employed at [Baylor At 18:40, Ms. Jones notified Dr. Erwin, and at 19:20, Hospital], when she merely noted Mr. Former's acute

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)

visual change on 7/16/08, but apparently did nothing Baylor Hospital's employees, and Drs. Messner, Erwin, and further, including communicating the condition to a Taylor proximately caused or contributed to causation of Mr. physician so that immediate evaluation could occur. It Fortner's injury, and states causation is more fully described is my opinion that Drs. Messner, Erwin, and Taylor and in Dr. Sadun's report. the PULM/CC PHYSICIAN (if other than Drs. Taylor and Erwin) each breached the applicable standard of In his December 20, 2010 report, Dr. Sadun states he care by not obtaining immediate ophthalmologic, as well “speak[s] to the issue of causation.” Dr. Sadun notes that as neurologic, consultation, and by not providing any by postoperative day two, Mr. Fortner's drop in hematocrit appropriate therapy or intervention to address Mr. Fortner's and hemoglobin “meant that he had essentially lost half of visual changes, upon being notified of the same. It is his red blood cell volume,” and shortly after surgery, Mr. my opinion that [Baylor Hospital] breached the applicable Fortner's blood pressure was about half of his preoperative standard of care by apparently failing to provide training to blood pressure. In his report, Dr. Sadun states: its staff, including but not necessarily limited to its physical therapy providers, about the urgent need for intervention in By postoperative day one, Mr. Fortner noted decreased the form of specialty consultative care, and when and how vision in the right eye and then a day or two later in the to access the same, in the event of a foreseeable emergent left eye.... When he was seen by ophthalmology July 17, visual condition such as Mr. Fortner's. 2008 at about 5:30 in the evening the diagnosis was anterior ischemic optic neuropathy with a complete loss of vision Dr. Kress opines that each of the breaches of the standard in both eyes. of care by Baylor Hospital, Baylor Hospital's employees, Dr. Messner, Dr. Erwin, and Dr. Taylor proximately *381 There are two types of anterior ischemic neuropathy.... caused or contributed to causation of Mr. Former's injury. Bilateral loss of vision in conjunction with this type of surgery and at such a profound extent is almost certainly the In his December 29, 2010 supplemental report, Dr. rare second form of anterior ischemic optic neuropathy.... Kress notes the consulting ophthalmologist recommended The mechanism of this type of post-surgical anterior correction of Mr. Fortner's hypotension and anemia. ischemic optic neuropathy can ... be termed ... shock “However, by that time, the patient was noted to have induced optic neuropathy. blindness in both eyes which ultimately was determined to According to Dr. Sadun, shock induced optic neuropathy, a be anterior ischemic optic neuropathy.” Dr. Kress opines that “watershed infarct (a type of stroke),” is due to a combination Baylor Hospital breached the applicable standard of care by of factors that decreases the supply of oxygen in a “more either failing to have or enforce policies and procedures, diffuse fashion” than other types of infarcts caused by blood or standing orders, directing practitioners, nurses, and other vessel blockage or bleeding. He states that in circumstances health care providers about when and how to access specialty where the patient becomes very anemic (low hematocrit) consultative care in the event of a foreseeable visual condition or experiences drops in blood pressure for a “reasonably such as Mr. Fortner's. He further opines the applicable long duration,” shock induced optic neuropathy can occur. standard of care was breached by a physical therapist According to Dr. Sadun, the amount of time it takes the employed by Baylor Hospital when she noted Mr. Fortner's optic nerve to undergo “irreversible loss” following a lack of acute visual change but did not communicate the condition to adequate blood supply “is in the order of a hundred minutes,” a physician so that immediate evaluation could occur and by although there are a number of factors *382 that “might a nurse at Baylor Hospital when she delayed communication make this longer.” According to Dr. Sadun: to a physician about Mr. Fortner's visual changes after she was aware of the changes. With regard to Drs. Messner, Shock induced neuropathy occurs during but also after Erwin, and Taylor, Dr. Kress states the physicians did not surgery. It is not uncommon for it to occur one or two days act to treat Mr. Fortner's anemia or hypotension during “the later. recognized window of opportunity” on July 16, 2008, when Mr. Fortner's acute visual changes were first noted. Dr. Kress Once shock induced optic atrophy occurs there is probably specifically refers to the December 20, 2010 report of Dr. only a narrow window of opportunity to reverse it. This Sadun as describing the “window of opportunity” during is best done by blood transfusions, which increase the which corrective action must be taken. Dr. Kress opines hematocrit or hemoglobin. There may be circumstances the breaches of the standards of care by Baylor Hospital, where raising the blood pressure is also useful.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)

and Taylor should be familiar with, and able to foresee, In noting four units of blood to raise the hematocrit were not the potential for “ischemic injury to the brain and/or eyes given to Mr. Fortner until the afternoon and evening of July given [Mr. Former's] past medical history of hypertension 17 and the afternoons of July 19 and 20, Dr. Sadun states in and peri-operative anemia and hypotension.” In addition, his report: Dr. Kress opined that nurses and physical therapists at a specialty heart hospital, such as Baylor Hospital, should be This delay in transfusion probably trained to immediately procure physician attention for any represented the last opportunity to patient who complains of vision changes. The expert reports reverse the visual loss for Mr. Fortner. of Drs. Kress and Sadun make clear that the “watershed” post- Failure to do so at this time was surgical anterior ischemic optic neuropathy experienced by inordinate and unfortunate. Indeed, Mr. Fortner required timely response and intervention, and the request for an ophthalmology opine that the breaches of the applicable standards of care consultation did result in a belated by appellees resulted in untimely and ineffective responses recommendation for blood transfusion to Mr. Fortner's complaints about vision impairment and, (and to take efforts to maintain blood consequently, Mr. Former's permanent blindness. pressure). Specifically, Dr. Lu, at about 17:38 on the 17th and Dr. Dr. Messner argues that the expert reports of Drs. Kress Brochner, the next day, expressly and Sadun are inadequate with respect to causation because recommended efforts to raise the blood they require the trial court to make impermissible inferences pressure and reverse the anemia as concerning the timing *383 of the opening and closing reflected by the low hemoglobin and of the “window of opportunity” to take corrective action, hematocrit. This delay in boosting Mr. whether Dr. Messner became aware of Mr. Fortner's vision Fortner's blood pressure, and more disturbance within the “window of opportunity,” and whether particularly in correcting his severe Dr. Messner could have arranged for effective treatment by anemia, nothwithstanding his having an ophthalmologist within the “window of opportunity.” A severe hypotension and anemia, similar argument is made by Drs. Erwin and Taylor. Baylor while also complaining of visual Hospital argues appellants' experts did not “explain how disturbance, was, in my opinion, a [Baylor Hospital's] alleged breach in failing to have policies breach in the standard of care. and procedures caused Mr. Fortner's permanent blindness.” In Dr. Sadun's opinion, Mr. Fortner's loss of vision was a consequence of a “drop in blood count as expressed by [8] [9] [10] Appellees demand too much from the expert hemoglobin and hematocrit (anemia), possibly complicated report required by section 74.351. One of the fundamental by drops in blood pressure.” With regard to causation, Dr. purposes of the expert report requirement in section 74.351 Sadun opines there was a failure by Baylor Hospital and Drs. is to deter frivolous claims. Palacios, 46 S.W.3d at 878 Messner, Erwin, and Taylor to obtain timely consultation (Legislature has determined that filing expert report that does by an ophthalmologist and a resulting failure to timely not evidence good faith effort to comply with definition of commence transfusion therapy and blood pressure elevation. expert report means claim is either frivolous or, at best, has “In concert, this led to Mr. Fortner's permanent blindness.” been brought prematurely). An expert report need not marshal all the plaintiff's proof necessary to establish causation at trial. Wright, 79 S.W.3d at 52; Fagadau v. Wenkstern, 311 S.W.3d 132, 138 (Tex.App.-Dallas 2010, no pet). Indeed, Direct Liability Claims Against Baylor section 74.351 does not require that an expert report anticipate Hospital and Drs. Messner, Erwin, and Taylor and rebut all possible defensive theories that may ultimately be presented to the trial court, and the fact a plaintiff may Appellants' expert reports discuss the medical necessity not prove causation at trial does not mean an expert report of timely and appropriate evaluation when a post-surgical was inadequate. See Fagadau, 311 S.W.3d at 139. Instead, coronary artery bypass patient in critical care experiences the expert report must represent a good faith effort to provide vision impairment, particularly when the symptom arises in a fair summary of the expert's opinions about the applicable conjunction with recent hypotension and anemia. According standard of care, the manner in which the care failed to meet to the expert report of Dr. Kress, Drs. Messner, Erwin,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)

that standard, and the causal relationship between that failure Drs. Messner, Erwin, and Taylor. We resolve appellants' sole and the claimed injury. Palacios, 46 S.W.3d at 878. The issue in their favor in part. expert report must contain sufficiently specific information to demonstrate causation beyond mere conjecture. Fagadau, 311 S.W.3d at 138. Further, the expert must explain the basis Direct Liability Claims Against Dallas of his statements and link his conclusions to the facts. Wright, Diagnostic, HeartFirst, and Texas Clinic 79 S.W.3d at 52; Quinones, 298 S.W.3d at 810. In their First Amended Petition, appellants allege the “entity” [11] Here, within the four corners of the expert reports, appellees—Dallas Diagnostic, HeartFirst, Texas Clinic, and Drs. Kress and Sadun collectively opine that Baylor Hospital Baylor Hospital—were negligent. In their brief, appellants employees and Drs. Messner, Erwin, and Taylor comprised affirmatively state they are “not pursuing claims of direct the team responsible for Mr. Fortner's post-surgical critical negligence, as opposed to vicarious liability, against any care. The expert reports collectively indicate that, while of the entity [appellees] other than [Baylor Hospital].” Mr. Fortner's post-surgical complaints of vision impairment Therefore, we conclude the trial court did not abuse its should have been recognized by these physicians and health discretion by dismissing with prejudice appellants' direct care providers as problematic in light of Mr. Fortner's liability claims of negligence, as opposed to vicarious hypotension and anemia, Mr. Fortner did not receive timely liability, asserted against Dallas Diagnostic, HeartFirst, and attention and treatment, including timely consultation by an Texas Clinic. We affirm the trial court's dismissal of ophthalmologist, blood transfusion therapy, and measures appellants' direct liability negligence claims against Dallas to elevate blood pressure, which caused the optic nerve of Diagnostic, HeartFirst, and Texas Clinic, and we resolve each of Mr. Fortner's eyes to be deprived of an adequate appellants' sole issue against them in part. blood supply over a period of time sufficient to result in permanent blindness in both eyes. The expert reports identify each physician and health care provider against which direct liability claims are asserted, including Baylor Hospital, and Vicarious Liability Claims Against Baylor Hospital, discuss how the provider breached the applicable standard of Dallas Diagnostic, HeartFirst, and Texas Clinic care and caused or contributed to causation of Mr. Fornter's Appellants allege Dallas Diagnostic is vicariously liable injury. With regard to Baylor Hospital, Dr. Kress opines for the negligence of its members, Drs. Erwin and Taylor. that the hospital breached the applicable standard of care Appellants likewise allege HeartFirst and Texas Clinic are by either failing to have or enforce policies and procedures, vicariously liable for the negligence of their employee, or standing orders, directing practitioners, nurses, and other Dr. Messner. Finally, appellants allege Baylor Hospital is health care providers about when and how to access specialty vicariously liable for the negligence of its employees, agents, consultative care in the event of a foreseeable visual condition ostensible agents and representatives. such as Mr. Former's, resulting in untimely health care intervention and Mr. Fortner's injury. [12] With regard to appellants' theories of vicarious liability asserted against Dallas Diagnostic, HeartFirst, Texas The expert reports in this case represent a good faith effort Clinic, and Baylor Hospital, “when a health care liability to provide a fair *384 summary of the experts' opinions claim involves a vicarious liability theory, either alone about the applicable standard of care, the manner in which the or in combination with other theories, an expert report care failed to meet that standard, and the causal relationship that meets the statutory standards as to the employee is between the failure and the claimed injury. Collectively, sufficient to implicate the employer's conduct under the the expert reports contain sufficient information to inform vicarious liability theory. And if any liability theory has appellees of the specific conduct that appellants have called been adequately covered, the entire case may proceed.” into question and to provide a basis for the trial court to Certified EMS, Inc. d/b/a CPNS Staffing v. Potts, 392 conclude the claims have merit. See Brandal, 257 S.W.3d S.W.3d 625, 632 (Tex.2013). See also, TTHR Ltd. at 206–07; Palacios, 46 S.W.3d at 879. Therefore, we P'ship v. Moreno, 401 S.W.3d 41 (Tex.2013), available conclude the trial court abused its discretion in dismissing at http://www.supreme.courts.state.tx.us/historical/2013/ appellants' direct liability claims against Baylor Hospital and apr/110630.pdf. Having concluded appellants' experts' reports represent an objective good faith effort to comply

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)

with the definition of an expert report in section 74.351(r) on lack of informed consent, “the only theory on which (6) with regard to appellants' direct liability claims against recovery may be obtained is that of negligence in failing to Drs. Erwin, Taylor, and Messner, those reports are sufficient disclose the risks or hazards that could have influenced a to support appellants' vicarious liability claims against Dallas reasonable person in making a decision to give or withhold Diagnostic, HeartFirst, and Texas Clinic. consent”); Greenberg v. Gillen, 257 S.W.3d 281, 282–83 (Tex.App.-Dallas 2008, pet. dismissed) (in cases alleging Dr. Kress expresses the following opinions regarding the lack of informed consent, there are two separate parts to negligence of Baylor Hospital employees: a physical therapist causation analysis: whether a reasonable person could have was negligent when she noted Mr. Fortner's acute visual been influenced to decide to give or withhold consent by change but did not communicate the condition to a physician being informed of risks or hazards that were not disclosed, so that immediate evaluation could occur, and Nurse Jones and whether injury complained of was caused in fact by the was negligent by delaying *385 communication to a undisclosed risk). In their brief, appellants state, “Although physician about Mr. Fortner's visual changes after she was [appellants] also asserted a lack of informed consent as aware of the changes. Baylor Hospital argues the expert part of their negligence claims against [Baylor Hospital], reports lack sufficient specificity on causation because the Dr. Messner, and his employers [HeartFirst, and Texas experts did not opine that any breach by hospital employees Clinic], the court dismissed the informed consent allegation “occurred within the 100–minute window or the ‘narrow by bench order.” At the March 2011 hearing, appellants window of opportunity,’ during which the visual loss counsel stated he understood the informed consent claims allegedly could have been reversed.” would be taken off the table unless appellants provided an expert report addressing those claims, and he acknowledged As discussed above, the expert reports opine Mr. Former's there was no expert report addressing those claims. On post-surgical complaints of vision impairment should have appeal, appellants have not asserted the trial court erred by been recognized by the health care providers and physicians dismissing their direct liability claims of lack of informed providing post-surgical critical care, including the Baylor consent against Dr. Messner or Baylor Hospital and their Hospital employees, and the failure to provide timely claims of vicarious liability for lack of informed consent attention and treatment caused the injuries to the optic nerves against Dr. Messner's employers, HeartFirst or Texas Clinic. in each of Mr. Former's eyes, resulting in total blindness. Therefore, we conclude the trial court did not abuse its With regard to appellants' clam of the vicarious liability discretion by dismissing with prejudice appellants' claims of Baylor Hospital for the negligence of its employees, of lack of informed consent against Dr. Messner, Baylor appellants' experts' reports represent an objective good faith Hospital, HeartFirst, and Texas Clinic. We affirm the trial effort to comply with the definition of an expert report court's dismissal of appellants' claims of lack of informed in section 74.351(r)(6), and those reports are sufficient to consent, and we resolve appellants' sole issue against them in support appellants' vicarious liability claim against Baylor part. Hospital.

Therefore, we conclude the trial court erred in dismissing *386 Conclusion appellants' vicarious liability claims against Baylor Hospital, Dallas Diagnostic, HeartFirst, and Texas Clinic. We resolve We affirm the trial court's dismissal of appellants' claims appellants' sole issue in their favor in part. of lack of informed consent against Baylor Hospital, Dr. Messner, HeartFirst, and Texas Clinic. We affirm the trial court's dismissal of appellants' direct liability claims against Informed Consent Claims Dallas Diagnostic, HeartFirst, and Texas Clinic. We reverse the trial court's dismissal of appellants' direct liability claims In their First Amended Petition, appellants allege neither against Baylor Hospital, Dr. Messner, Dr. Erwin, and Dr. Dr. Messner nor Baylor Hospital disclosed to, or informed, Taylor and appellants' vicarious liability claims against Mr. Fortner that vision loss was a potential risk or hazard Baylor Hospital, Dallas Diagnostic, HeartFirst, and Texas associated with the anticipated surgical or post-surgical Clinic. We remand this cause to the trial court for further procedures. See TEX. CIV. PRAC. & REM.CODE ANN. proceedings. § 74.101 (West 2011) (in health care liability claims based

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Fortner v. Hospital of the Southwest, LLP, 399 S.W.3d 373 (2013)

All Citations

399 S.W.3d 373

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

fisherman on board a fishing vessel in territorial waters fell within purview of maritime law. 852 S.W.2d 916 Supreme Court of Texas. 2 Cases that cite this headnote GENERAL CHEMICAL CORPORATION, Petitioner, v. [2] Admiralty Gonzalo DE LA LASTRA and Amada De La Lastra, Effect of State Laws Individually and as Personal Representative of When invoked, maritime law becomes the the Estates of Gustavo De La Lastra and Jose exclusive remedy under which party may Eduardo De La Lastra, Decedents, Respondents. proceed, preempting all state law grounds of recovery. No. D–1799. | Feb. 24, 1993. | Rehearing Overruled June 3, 1993. | Concurring 1 Cases that cite this headnote Opinion of Justice Cornyn June 3, 1993. [3] Admiralty Parents of deceased shrimp fisherman brought products Effect of State Laws liability action against manufacturer of sodium metabisulfite Maritime law, though properly invoked, can be (“shrimp dip”), asserting survival and wrongful death causes waived. of action. Judgment in excess of $44 million was entered in the District Court Number 197, Cameron County, Menton 1 Cases that cite this headnote Murray, Jr., J., and manufacturer appealed. The Court of Appeals, Thirteenth Judicial District, 815 S.W.2d 750, affirmed. On application for writ of error, the Supreme [4] Admiralty Court, Gonzalez, J., held that: (1) manufacturer waived Remedies and procedure application of maritime law, with its limited elements of Admiralty damages, by failing to object to evidence and jury questions Saving of common-law remedy regarding damages not recoverable under maritime law; State courts have concurrent jurisdiction with (2) evidence supported jury finding of gross negligence federal courts over maritime actions, constrained supporting award of punitive damages; but (3) parents by “reverse-Erie doctrine,” which requires could not recover punitive damages for wrongful death and that substantive remedies afforded by the thus punitive damages limit under statute generally limiting states conform to governing federal maritime punitive damages to four time the actual damages awarded standards. 28 U.S.C.A. § 1333. had to be based only on the survival recovery. 14 Cases that cite this headnote Affirmed in part and reversed and remanded in part. [5] Admiralty Cornyn, J., filed concurring opinion. Jurisdiction in general Maritime law does not affect court's jurisdiction Hecht, J., filed concurring and dissenting opinion in which over claim, but merely dictates the substantive Phillips, C.J., and Enoch, J., joined. law that governs that claim's resolution.

2 Cases that cite this headnote West Headnotes (12) [6] Admiralty Wrongful death [1] Admiralty Causing death Defendant manufacturer, in products liability wrongful death action, waived application of Wrongful death action against manufacturer maritime law, though it had pled that case was of product which caused death of commercial

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

governed by maritime law, where it failed to damages in combined survival and wrongful object to evidence and jury questions regarding death action brought by parents was limited damages not recoverable under maritime law and to statutory maximum of four times the actual where, at time of trial, there was available federal damages recovered in the survival actions. remedy and state and federal law contained V.T.C.A., Civil Practice & Remedies Code separate and distinct elements of damages. §§ 41.001(6)(A), 41.007; Vernon's Ann.Texas Vernon's Ann.Texas Rules Civ.Proc., Rule 274. Const. Art. 16, § 26.

16 Cases that cite this headnote 15 Cases that cite this headnote

[7] Appeal and Error [11] Death Error Committed or Invited by Party Exemplary damages Complaining Parents of deceased, while entitled to maintain Parties may not invite error by requesting issue action under the Wrongful Death statute, are and then objecting to its submission. unable to recover punitive damages. V.T.C.A., Civil Practice & Remedies Code §§ 71.001 et 25 Cases that cite this headnote seq., 71.004; Vernon's Ann.Texas Const. Art. 16, §§ 26, 26 comment. [8] Death 12 Cases that cite this headnote Damages Evidence supported finding of gross negligence on the part of manufacturer of sodium [12] Statutes metabisulfite (“shrimp dip”) in failing to place Motives, Opinions, and Statements of warning informing users of risk of death, Legislators supporting award of punitive damages, in light Statutes of evidence of nearly identical prior incident Sponsors or authors in which shrimpers were asphyxiated in boat's Intent of individual legislator, even statute's hold when they spread sodium metabisulfite principle author, is not legislative history across iced shrimp, as well as at least nine controlling construction given statute, but is at other incidents of death or injury involving the most persuasive authority. product. 19 Cases that cite this headnote 5 Cases that cite this headnote

[9] Products Liability Warnings or Instructions Attorneys and Law Firms Presence on label of proper instructions *917 W. James Kronzer, Jr., Leslie C. Taylor, Houston, regarding product's use would not preclude Royal H. Brin, Jr., Dallas, John William Black, Brownsville, finding of failure to adequately warn of serious for petitioner. consequences associated with foreseeable use. Elizabeth A. Davis, Houston, Ray R. Marchan, Guy Allison, 2 Cases that cite this headnote Thomas F. Nye, Corpus Christi, John R. Lyde, McAllen, for respondents. [10] Death Statutory limitations In light of state constitutional prohibition against OPINION recovery of punitive damages by parents in wrongful death action, permissible punitive

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

GONZALEZ, Justice. CAN IRRITATE THE SKIN, EYES AND RESPIRATORY TRACT, PROLONGED EXPOSURE This products liability case presents two principal issues. MAY CAUSE BURNS. First, whether general maritime law or state law applies to the facts before us. Second, whether the punitive damages award HARMFUL IF INGESTED, MAY CAUSE SEVERE was excessive under state law or the state constitution. ALLERGIC REACTION IN SOME ASTHMATICS AND SULFITE SENSITIVE INDIVIDUALS. Two young men died at sea from asphyxiation on a shrimp boat expedition after using a chemical preservative on their REACTS WITH ACIDS AND WATER, RELEASING catch. Their parents brought suit against General Chemical TOXIC SULFUR DIOXIDE GAS. Corporation, the manufacturer of the chemical, and other AVOID CONTACT WITH SKIN AND EYES. defendants alleging negligence, gross negligence, and a violation of the Texas wrongful death statute. Among other DO NOT BREATH PRODUCT DUST, USE WITH things, General Chemical pled that this case was governed by PROPER VENTILATION. federal maritime law. However, the jury was asked without objection to determine damages which are recoverable DO NOT SWALLOW. under state law but not under federal maritime law. Based AVOID CONTACT WITH ACIDS. on favorable jury findings of these issues, judgment was rendered in favor of the parents and the estates of the young CONTACT WITH WATER SHOULD BE UNDER men. In their individual capacity, the parents were awarded WELL VENTILATED CONDITIONS. an amount for actual damages and, as representatives of the estates, they were awarded actual damages and punitive Do Not Use In Dry Form. damages. The court of appeals affirmed, holding that this was not a maritime law case. 815 S.W.2d 750. We hold that Prepare and use dip solution on deck—NOT IN HOLD. state law applies because maritime law, although properly Toxic sulphur dioxide gas may be liberated. invoked, was waived in this case; we further hold that the The De La Lastras were either unaware of or consciously punitive damage award exceeds the *918 four times actual disregarded this warning. They used “shrimp dip” in their damages cap found in TEX.CIV.PRAC. & REM.CODE § vessel's hold by layering ice and dry-form shrimp dip across 41.007 and violates the Texas Constitution's prohibition (Art. their catch. They were overcome by the sulfur dioxide fumes, XVI, section 26) against parents recovering punitive damages and died of asphyxiation shortly after losing consciousness. in wrongful death actions. Thus, we affirm in part and reverse and remand this cause to the trial court for a recalculation of The parents, individually and as personal representatives damages consistent with this opinion. of the estates of their sons, brought suit against General Chemical, and against the owner of the vessel. 1 Their cause of action was based on strict liability, negligence, and gross I. negligence in manufacturing and distributing a product with knowledge that the product could cause serious bodily injury In June 1988, Jose De La Lastra and his brother Gustavo were or death and in failing to adequately warn of such dangers. commercial fishermen aboard the “Wilderness,” a fishing vessel which operated in the waters off Brownsville, Texas. 1 Only General Chemical is a party to this appeal. The Sodium metabisulfite, colloquially called “shrimp dip,” is a product manufactured by General Chemical that is commonly claim against the owner of the vessel was severed. used in the shrimping industry to prevent “black spots” from General Chemical pled that the deceased brothers were marring freshly caught fish. The bags in which the shrimp dip seamen, that the occurrence occurred beyond the territorial is sold are marked with a warning in English and in Spanish waters of Texas, and that therefore the rights of the parties that says, among other things: were governed by maritime law and the Death on the High Seas Act, 46 U.S.C.App. § 761–62 (DOHSA). Under DOHSA, a party is precluded from recovering any non-

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

pecuniary damages, such as mental anguish, loss of society, Marine Corp., 498 U.S. 19, ––– 111 S.Ct. 317, 325, 112 and punitive damages. General Chemical asserts that this L.Ed.2d 275 (1990). 3 pleading is sufficient to invoke the common law doctrine of general maritime law. 3 Miles impliedly overruled previous decisions recognizing a right of recovery for loss of society The jury found that the deaths occurred within the territorial damages under general maritime law. See Sea–Land waters of Texas, that General Chemical was guilty of Services v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 negligence and gross negligence in failing to provide an L.Ed.2d 9 (1974), and Mobil Oil Corp. v. Higginbotham, adequate warning on their product of the dangers associated 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). with its use, and that the failure to warn rendered the product General Chemical argues that Miles would control here in question unreasonably dangerous as marketed. Based on if maritime law applies, although that case involved a the jury verdict, the parents were awarded a $44,628,698.63 suit by a seaman against his employer. We do not today decide whether the Miles holding extends to actions judgment against General Chemical. 2 against third parties, such as General Chemical.

2 [1] There is little question that the facts of this case come The damages awarded were as follows: To the parents individually (wrongful within the purview of maritime law. See Sisson v. Ruby, death): 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990). Pecuniary loss (Gustavo) $ Although neither DOHSA, 46 U.S.C.App. § 761, nor the 500,000.00 Jones Act, 46 U.S.C.App. § 688, provides a remedy under Pecuniary loss (Jose) $ 500,000.00 these circumstances, 4 the United States Supreme Court in Loss of companionship and society $ Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409, (Gustavo) 2,500,000.00 90 S.Ct. 1772, 1792, 26 L.Ed.2d 339 (1970), has recognized Loss of companionship and society (Jose) $ a common law remedy for wrongful deaths occurring in 2,500,000.00 territorial waters under the general maritime law. Therefore, Mental anguish (Gustavo) $ general maritime law is applicable to the facts of this case. 2,500,000.00 Mental anguish (Jose) $ 2,500,000.00 4 DOHSA provides a remedy for wrongful death occurring Cost of psychological care $ on the high seas, beyond three nautical miles from shore, 5,000.00 while the Jones Act provides a remedy for seamen To the parents as representatives of against their employers. This incident occurred in the Gustavo's estate: (survival damages): territorial waters of Texas, and is an action against a third Pain and mental anguish $ party, not the decedents' employer. 1,000,000.00 Punitive damages $15,000,000.00 [2] [3] [4] [5] When invoked, maritime law becomes To the parents as representatives of Jose's the exclusive remedy under which a party may proceed, estate: (survival damages): preempting all state law grounds of recovery. See Offshore Pain and mental anguish $ 1,000,000.00 Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, Punitive damages $15,000,000.00 91 L.Ed.2d 174 (1986); Mandell & Wright v. Thomas, 441 Prejudgment interest $ S.W.2d 841 (Tex.1969). Nevertheless, the issue squarely 1,623,698.63 before us is whether maritime law, although properly Total $44,628,698.63 invoked, can be waived. We conclude that it can. Both the United States Supreme Court and this Court, as well as many federal circuits, have held that preemption arguments which *919 II. affect the choice of law, and not the choice of forum, are General Chemical argues that maritime law, and not state waivable. See International Longshoremen's Ass'n v. Davis, law, controls this case, and therefore nonpecuniary damages 476 U.S. 380, 393, 106 S.Ct. 1904, 1913, 90 L.Ed.2d 389 of loss of society and companionship, mental anguish, and (1986); Heci Exploration Co. v. Holloway, 862 F.2d 513, punitive damages are not recoverable. See Miles v. Apex 520 (5th Cir.1988); Dueringer v. General American Life Ins. Co., 842 F.2d 127, 130 (5th Cir.1988); Johnson v. Armored Transport of Calif., Inc., 813 F.2d 1041, 1043–

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

44 (9th Cir.1987); *920 Gilchrist v. Jim Slemons Imports, General Chemical admits that the judgment was based on Inc., 803 F.2d 1488, 1497 (9th Cir.1986); Gorman v. Life state law. 6 Ins. Co. of North America, 811 S.W.2d 542, 545 (Tex.1991). Pursuant to the “savings to suitors” clause of 28 U.S.C. 5 Without a doubt it is evident that at trial, General § 1333, state courts have concurrent jurisdiction with the Chemical relied on state law. In a response to a motion federal courts over maritime actions, constrained by the “ in the court of appeals, General Chemical stated: ‘reverse-Erie’ doctrine which requires that the substantive [t]he judgment against the appellant herein is not remedies afforded by the States conform to governing federal under the Jones Act but rather under common law maritime standards.” Offshore Logistics, Inc. v. Tallentire, and statutory law of the state of Texas. Appellant 477 U.S. 207, 223, 106 S.Ct. 2485, 2494, 91 L.Ed.2d 174 is not appealing any claim under the Jones Act (1986); see also Texaco Ref. and Mktg, Inc. v. Estate of but rather a claim under the Texas common law Dau Van Tran, 808 S.W.2d 61, 64 (Tex.), cert. denied, 502 of negligence and strict product liability.... Here U.S. 908, 112 S.Ct. 301, 116 L.Ed.2d 245 (1991). Thus, the suit against the employer and shipowner ... was maritime law does not affect a court's jurisdiction over the severed and made the subject of a separate action. claim, it merely dictates the substantive law that governs that 6 The liability issues under state and federal law claim's resolution. As such, maritime law is a choice of law are identical. The only potential distinction is the determination that can be waived. recoverable damages. Therefore, in order to determine under what law the judgment was based, this distinction [6] Under the facts of this case General Chemical waived becomes a critical inquiry. the application of maritime law by failing to object to General Chemical defends its submission of state law evidence and jury questions regarding damages which are not damages and its failure to assert the application of federal law recoverable under maritime law. in the trial court by claiming that the United States Supreme Court had not yet recognized a wrongful death action for [7] Although it asserted that DOHSA controlled, General seamen under general maritime law, and, alternatively, the Chemical failed to bring to the trial court's attention the damages recoverable under general maritime law had not potential applicability of general maritime law limitations been fully developed; it wasn't until Miles v. Apex Marine on damages. Instead, General Chemical incorrectly assumed Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1991), that, if the jury found that the deaths occurred in territorial decided while this case was pending in the court of appeals, waters, federal law supplied no remedy and the claim would that the Supreme Court recognized this ground of recovery therefore be governed by Texas law. General Chemical and established its available damages. This argument fails on submitted an issue inquiring if the deaths occurred beyond both grounds. three nautical miles from shore. After a negative jury finding, precluding the applicability of DOHSA, the remaining As previously discussed, an action under general maritime questions that were submitted were damages recoverable law for wrongful deaths *921 occurring in territorial waters under the Texas wrongful death and survival statutes; was recognized over twenty years ago in Moragne v. States including elements of damages not recoverable under general Marine Lines, Inc., supra. While Moragne left open the maritime law. General Chemical did not object to the question of what damages were available under this ground submission of these issues, see TEX.R.CIV.P. 274, and in of recovery, subsequent Supreme Court and federal circuit fact, requested the very issues that it now seeks to avoid. 5 decisions have addressed this issue. In Sea–Land Services, Parties may not invite error by requesting an issue and then Inc. v. Gaudet, 414 U.S. 573, 585, 94 S.Ct. 806, 814, 39 objecting to its submission. See Daily v. Wheat, 681 S.W.2d L.Ed.2d 9 (1974), the Court held that, in general maritime 747, 754 (Tex.App.—Houston [14th Dist.] 1984, writ ref'd wrongful death actions, a decedent's dependents may recover n.r.e.); City of Amarillo v. Langley, 651 S.W.2d 906, 914 damages for loss of support, services, and society, but not (Tex.App.—Amarillo 1983, no writ); Beasley v. Baker, 333 for mental anguish. This holding was reiterated in Offshore S.W.2d 212, 214 (Tex.Civ.App.—Amarillo 1960, no writ). Logistics, Inc. v. Tallentire, 477 U.S. 207, 216, 106 S.Ct. Further, it was not until its motion for rehearing in the court 2485, 2491, 91 L.Ed.2d 174 (1986) and Mobil Oil Corp. v. of appeals that General Chemical asserted the applicability of Higginbotham, 436 U.S. 618, 622, 98 S.Ct. 2010, 2013, 56 maritime law; and in its post submission brief to this Court, L.Ed.2d 581 (1978). 7

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

7 Although Tallentire and Higginbotham addressed issues consumers of the potential dangers associated with use of that are different than those facing us today, both this product. While it is true that the Coast Guard report expressly recognized that, under Gaudet, loss of society does not state that users of the product should be warned damages were available under general maritime law. that the chemical is deadly, Commander Pangrass of the United States Coast Guard testified that this is the type The fifth circuit has also addressed the damages available of warning that they were trying to get the manufacturer under general maritime law. In Sistrunk v. Circle Bar Drilling to give. There was further testimony that Allied Chemical Co., 770 F.2d 455, 459 (5th Cir.1985), and Patton–Tully knew of at least nine other incidents of death and/or Trans. Co. v. Ratliff, 797 F.2d 206, 213 (5th Cir.1986), the court, following Gaudet, held that parents could not recover injury involving sodium metabisulfite. 8 *922 Despite this loss of society damages absent a showing of dependency knowledge General Chemical failed to place warnings which upon the deceased children. See also Truehart v. Blandon, informed users of the risk of death. There was also testimony 672 F.Supp. 929, 930 (E.D.La.1987); Hebert v. Otto Candies, from a warnings expert that General Chemical's warnings Inc., 402 F.Supp. 503, 507 (E.D.La.1975). Further, Miles, were grossly inadequate considering the known dangers and the very case General Chemical now relies upon, was a fifth effects of sodium metabisulfite. We conclude that all of this circuit opinion, decided prior to the underlying trial of this evidence amounts to some evidence of gross negligence. 9 case. 882 F.2d 976 (5th Cir.1989), aff'd, 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1991). 8 The dissent suggests that the non-fatal injuries involved different circumstances and are therefore not probative These cases illustrate that, at the time this case went to trial, evidence of General Chemical's gross negligence. not only was there an available federal remedy, but also We disagree. All of the injuries involved incidents that state and federal law contained separate and distinct of asphyxiation. One of the individuals injured was elements of damages; under maritime law mental anguish an employee of Allied Chemical who was merely damages were unavailable and loss of society could only be transporting the sodium metabisulfite. This is competent recovered upon a showing of dependency. General Chemical evidence of General Chemical's actual knowledge of the was obligated to object to jury questions on such damages in risks involved with the handling of the product. order to preserve error. Although the Supreme Court did not 9 The dissent argues that if the De La Lastras would have decide Miles until later, General Chemical was required to used the product in accordance with the instructions, object to jury questions concerning these damages in order to the chemical would not have been deadly. While receive the benefit of a change in the law—to the extent there perhaps this is true, it confuses the inquiry. Although was one—on appeal. By failing to pursue its available federal the label contained proper instructions regarding the remedy at trial, instead choosing to submit issues based on product's use, it failed to adequately warn of the serious state law, General Chemical has waived the application of consequences associated with this foreseeable use. general maritime law. Furthermore, as the dissenting opinion acknowledges, since General Chemical did not challenge the jury's finding that the warning was inadequate, “the inadequacy of the warning label must be taken as an established fact.” III. At 926.

[8] We next consider the punitive damages issue. General [10] Having concluded that there is some evidence upon Chemical asserts that the punitive damage award cannot stand which to base an award of punitive damages, we next because there was no evidence to support the jury finding of consider whether the punitive damages awarded in this case gross negligence. We disagree. were excessive under state law and the constitution. General Chemical asserts that the punitive damage award is governed [9] There was evidence of a prior incident in 1973 involving by section 41.007 of the Texas Civil Practice and Remedies the shrimping vessel “Cape Rojo.” This case involved facts Code and must therefore be reduced to four times the nearly identical to this one. Two shrimpers were asphyxiated actual damage award. At the same time General Chemical in the boat's hold when they spread sodium metabisulfite challenges the punitive damage award as unconstitutionally across iced shrimp. Following an investigation of the deaths, excessive under article I, section 19 of the Texas Constitution. the Coast Guard sent a letter to Allied Chemical, General TEX.CIV.PRAC. & REM.CODE § 41.007 states: “Except Chemical's predecessor, advising them to adequately warn as provided by Section 41.008, exemplary damages awarded

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

against a defendant may not exceed four times the amount of Scoggins v. Southwestern Elec. Serv. Co., 434 S.W.2d 376 actual damages or $200,000, whichever is greater.” Although (Tex.Civ.App.—Tyler 1968, writ ref'd n.r.e.). this provision does not apply to intentional torts or torts in which there is finding of malice as defined by § 41.001(6)(A), [11] It is well established that this provision defines the when applicable, the amount of punitive damages to which a class of persons who are entitled to recover punitive damages party is entitled is limited to four times the amount of actual for wrongful death; parents of the deceased, while they are damages recovered. entitled to maintain an action under the Wrongful Death statute, are not included in article XVI, § 26 and are therefore In determining the amount of actual damages to use as a base unable to recover punitive damages. TEX.CIV.PRAC. & in calculating the four to one ratio, the trial court included the REM.CODE § 71.004; Winnt v. Int'l & G.N. Ry. Co., 74 parents' wrongful death recovery. This represented an actual Tex. 32, 11 S.W. 907, 908 (1889); see also Houston & damage figure of over $6,500,000 on which the $15,000,000 T.C. Ry. Co. v. Baker, 57 Tex. 419, 424 (1882) (holding punitive damages awarded to each estate was to be based; that parents are not among those who are entitled to recover just over a 2 to 1 ratio. Accordingly, the trial court rendered exemplary damages for wrongful death under article XVI, § judgment for the full amount of the jury award. 30 of the Texas Constitution of 1869). The Wrongful Death statute cannot broaden the class of persons entitled to recover Petitioners assert that including the parents' wrongful death punitive damages beyond the scope of article XVI, § 26 of the recovery as actual damages in the ratio calculation of section constitution. Scoggins, 434 S.W.2d at 380. In 1889 this Court, 41.007 allows the parents to recover punitive damages for analyzing the relationship between article XVI, § 26 and the wrongful death in violation of TEX. CONST. art. XVI, § 26. Wrongful Death Act said, “the right to maintain an action Rather, they contend that the amount of actual damages that for the recovery of exemplary damages for the death of a should be used in determining the permissible ratio is the person ... is confined to the class of persons who, by the terms $1,000,000 each estate received under the survival recovery; of the constitution, are designated as entitled to maintain such thus, each estate would be limited to a punitive damages action; namely the surviving husband or wife, or heirs of the recovery of $4,000,000. We agree. body, of the deceased, and not to the parent.” Winnt, 11 S.W. at 908. TEX. CONST. art. XVI, § 26 provides: In the instant case, the court of appeals affirmed the trial Every person, corporation, or court's damage award, rejecting petitioner's argument that the company, that may commit a constitution prohibits the inclusion of the parents' wrongful homicide, through wilful act, or death recovery in the punitive damages calculation. 815 omission, or gross neglect, shall be S.W.2d at 758. The court of appeals rested its conclusion responsible, in exemplary damages, to on this Court's decision in Hofer v. Lavender, 679 S.W.2d the surviving husband, widow, heirs of 470 (Tex.1984) and on the definition of “claimant” as his or her body, or such of them as defined in TEX.CIV.PRAC. & REM.CODE § 41.001(1). 10 there may be, without regard to any Under section 41.001(1), when a party is seeking exemplary criminal proceeding that may or may damages for the death of an individual, both the deceased and not be had in relation to the homicide. the persons seeking recovery are defined as a claimant. At common law, a cause of action for personal injuries and the right to exemplary damages for the willful or wanton 10 Section 41.001 defines claimant as: conduct of the tortfeasor terminated with the deceased. In a party, including a plaintiff, counterclaimant, order to give the decedent's survivors an available remedy, cross-claimant, or third-party plaintiff, seeking Texas passed the Wrongful Death Act. However, this Act was recovery of exemplary damages. In a cause of said to have created a new cause of action, as opposed to a action in which a party seeks recovery of exemplary mere continuation of the deceased's cause of action, and thus damages related to injury to another person, damage to the property of another person, death of another the right to recover exemplary damages still terminated upon person, or other harm to another person, “claimant” the death of the decedent. The constitutional provision *923 includes both that other person and the party seeking was enacted to allow the survivors to recover exemplary recovery of exemplary damages. damages. TEX. CONST. art. XVI, § 26, interp. commentary;

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

TEX.CIV.PRAC. & REM.CODE § 41.001(1). survive to the estate, whoever the [12] Although “claimant” appears nowhere in the punitive beneficiaries of that estate may be. damages limitation provision of section 41.007 and would Id. at 476. The rationale behind allowing parents, as seem to have no application, Senator Montford, the author of beneficiaries, such a recovery is that in a survival cause of this chapter, in an article in the Houston Law Review, gave his action the estate is seeking punitive damages, not the parents; view that anyone who seeks recovery of exemplary damages the classification of the beneficiaries of the estate should not under Chapter 41 is a claimant for all purposes of this determine the estate's ability to seek this recovery. However, chapter, including section 41.007, and that both the parent's to allow parents, as beneficiaries of an estate, to also include and the child's recovery are to be included in calculating the their recovery for wrongful death with their survival recovery punitive damages ratio. Montford and Barber, 1987 Texas would impermissibly extend Hofer, allowing parents to Tort Reform: The Quest for a Fairer and More Predictable circumvent article XVI, § 26 by bootstrapping their wrongful Texas Civil Justice System Part Two, 25 Houston L.Rev. death recovery to their survival damages in order to procure 245, 316 (1988). Nevertheless, the intent of an individual a larger punitive damage award. This should not and can legislator, even a statute's principal author, is not legislative not be the result. Wrongful death and survival recoveries are history controlling the construction to be given a statute. independent of one another, and the availability of one should It is at most persuasive authority as might be given the in no way affect the other. comments of any learned scholar of the subject. Even if Senator Montford's interpretation is correct, however, just It is well settled that had the De La Lastras brought only as the Wrongful Death statute cannot expand upon the a wrongful death action, they would not be entitled to Constitution, neither can section 41.007. recover punitive damages. Hofer, 679 S.W.2d at 475; Winnt, 11 S.W. at 908; Houston, 57 Tex. at 424 (1882). It is As previously noted, the court of appeals also relied on our therefore illogical to allow these damages to be included decision in Hofer v. Lavender, 679 S.W.2d 470 stating: when a survival recovery is also effectuated. If the parents, as [a]ppellants rely on Hofer v. Lavender (citations omitted), representatives of the estate, were to bring a survival action which held that parents cannot recover exemplary damages only, each estate would be limited to a punitive damage under the Wrongful Death Act. The court in Hofer, recovery of $4,000,000; four times the actual damages award however, stated that “exemplary *924 damages survive of $1,000,000. By including the wrongful death recovery, to the estate, whoever the beneficiaries of that estate may however, the punitive damage award of $15,000,000 falls be.” Id. at 476. In the instant case, the beneficiaries of the within the permissible recovery ratio; a recovery that would estate are Gonzalo and Amada De La Lastra. not be allowed, but for the inclusion of the wrongful death damages. Thus, including these wrongful death damages This conclusion is based upon a misapplication of Hofer. In effectively allows the parents to recover punitive damages Hofer, this Court addressed the issue of whether the parents, of $11,000,000 for wrongful death, as opposed to receiving as beneficiaries, are entitled to punitive damages that are as beneficiaries what the estate was entitled to under their awarded to the estate of the deceased under a survival cause of survival cause of action. Such a recovery clearly violates action. Concluding that the parents were entitled to recover, article XVI, § 26. Accordingly, we hold that the De we said, La Lastra's wrongful death recovery cannot be used in calculating the amount of actual damages for purposes of [t]he survival statute did not create a determining the amount of recoverable punitive damages. new cause of action, but kept alive Therefore, the award of $15,000,000 in punitive damages to the cause of action that the deceased each estate must be reduced. might have had. It makes no sense to say that a tortfeasor may have General Chemical also asserts that the current Texas system exemplary damages assessed against of awarding punitive damages, and the resulting excessive him in favor of a decedent's estate if the punitive damage award deprived them of their constitutional beneficiaries of the estate are a spouse rights of due process as guaranteed by article I, § 19 of or children, but not if the beneficiaries the Texas Constitution and the Fourteenth Amendment to are otherwise.... exemplary damages the United States Constitution. Petitioners rely on Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

1032, 113 L.Ed.2d 1 (1991), in which the United States the judgment rather than join the court's opinion, however, Supreme Court addressed the question of whether an because I cannot agree with the remainder of the opinion. excessive punitive damage award violates due process under the Fourteenth Amendment. Although the Court found the damage award in that case to be constitutional, 11 it did HECHT, Justice, concurring and dissenting. recognize that in certain circumstances a *925 due process challenge to excessive punitive damages could be made. The Court undertook an individualized analysis, focusing on [Filed Feb. 24, 1993] the procedural safeguards afforded a defendant, such as the I agree with the Court that General Chemical cannot complain amount of discretion the jury has in its determination of on appeal that federal maritime law precludes recovery punitive damages, the instructions the jury received which of damages for nonpecuniary loss—damages for mental inform the jury of the policy and purpose behind punitive anguish and loss of society, and punitive damages—when damages, and the trial court and appellate review of the jury that complaint was not made in the trial court. Hence, I join award. Nevertheless, because we conclude that section 41.007 in Part II of the Court's opinion. I write separately on this mandates a reduction in the punitive damages, we need not issue only because I believe that General Chemical's reliance address whether or not this award was unconstitutionally upon Texaco Ref. & Mktg., Inc. v. Van Tran, 808 S.W.2d 61 excessive in light of Haslip. 12 (Tex.1991), deserves an additional response. I do not agree, however, that there is any probative evidence to support an 11 The punitive damages awarded in Haslip were about award of punitive damages. Thus, while I believe the Court $840,000. The compensatory damages were $200,000. is correct in Part III of its opinion that TEX.CIV.PRAC. & This amounts to a ratio of approximately 4.2 to 1. REM.CODE § 41.007 limits the amount of punitive damages 12 which could be awarded in this case, I would hold that there General Chemical asserts the applicability of section is no basis for any award at all, not the $30 million found 41.007 and seeks to have the 4–1 ratio imposed. We by the jury nor the $8 million approved by the Court. I also need not address whether such a ratio will in all cases withstand a constitutional challenge. Contrary to believe the Court is remiss in refusing to address General the dissent's view, General Chemical has not raised a Chemical's arguments that the award of punitive damages constitutional challenge to section 41.007. in this case violates constitutional due process guaranties. I discuss first the evidence to support punitive damages, then The survival recovery for each estate was $1,000,000, thus the constitutional arguments, and finally our decision in Van each estate is entitled to receive $4,000,000 in punitive Tran. damages. This equates to a total punitive damage recovery of $8,000,000. We therefore reverse the judgment of the court of appeals as it relates to punitive damages and remand this cause to the trial court to render judgment consistent with this I opinion. There is no question that if Gustavo and Jose Eduardo De La Lastra had followed the warnings and instructions printed on the sack of sodium metabisulfite they were using, their Concurring opinion by CORNYN, J. tragic deaths would have been avoided. Sodium metabisulfite, commonly referred to as “shrimp dip” by those associated Concurring and dissenting opinion by HECHT, J., joined by with the shrimp fishing industry, is a chemical used to PHILLIPS, C.J., and ENOCH, J. preserve shrimp after they are caught. It is called “dip” because, as properly used, the chemical, a dry powder, is CORNYN, Justice, concurring. mixed with water and shrimp are dipped in the solution and then removed, drained and stored. Like many chemicals, *926 sodium metabisulfite is not dangerous if it is used [Filed June 3, 1993] properly, but there are dangers associated with its misuse. I agree with the court that there was some evidence of Specifically, it reacts with water to produce sulfur dioxide gross negligence presented in the trial court. I concur in gas, which if inhaled can cause asphyxiation. Since this gas

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

is heavier than air and thus will accumulate in any confined space, the chemical should be used only in an area that is well Do Not Use In Dry Form. ventilated. Prepare and use dip solution on deck—NOT IN HOLD. Toxic sulfur dioxide gas may be liberated. General Chemical sells sodium metabisulfite in 50–pound bags. On each bag is a warning label which covers about two- There is no evidence that a more extensive warning label thirds of one side. The text on the left side of the label is was used by any other manufacturer of the chemical. A in English, and the text on the right side is in Spanish. Each copy of the entire label is attached as an appendix to this side is about the size of a letter-sized sheet of paper (8–/ 2″ opinion. x 11″). The English text is printed in all capital letters, while The De La Lastras did precisely what the instructions warned the Spanish text is in both lower and upper case. Portions against. They used the chemical in dry form instead of mixing of the text are in black print and portions are in red print. it with water as the label instructed, and they sprinkled the All of the print is larger than that in the text of ordinary chemical on their shrimp in the unventilated hold of their reading materials, such as newspapers and magazines. There boat instead of using it on deck. When they did, toxic sulfur is no contention in this case that the label is inconspicuous, dioxide gas was released—exactly as the label warned it or that the print is too small, or that the warnings are hard to would be—and asphyxiated them. No one disputes that if the understand. De La Lastras had followed the warnings and instructions on the label, they would not have died; but there is nothing to The label begins in large capital letters: WARNING! (in indicate that the De La Lastras ever even read the label. Spanish, PELIGRO ). It states that the chemical should not be ingested, inhaled or touched. It gives instructions for The jury found that the warning label was inadequate because the proper use and handling of the chemical as well as for it did not expressly state that the toxic gas produced by misuse remedies if the chemical is mishandled. A propos of this case, of the product could be fatal. The jury also found that this the warning label states in part: inadequacy in the label caused the De La Lastras' deaths. General Chemical challenged these findings unsuccessfully WARNING! in the court of appeals, but it has not raised those challenges in this Court. Consequently, the inadequacy of the warning ..... label must be taken as an established fact. REACTS WITH ACIDS AND WATER, RELEASING TOXIC SULFUR DIOXIDE GAS.... The award of punitive damages in this case is based upon the jury's finding that General Chemical was grossly negligent in USE WITH PROPER VENTILATION.... failing to warn expressly that misuse of its product could be fatal. The trial court *927 correctly defined gross negligence CONTACT WITH WATER SHOULD BE UNDER for the jury to mean: WELL–VENTILATED CONDITIONS.... more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire SPECIAL INSTRUCTIONS want of care as to establish that the act or omission was the result of CONTROL OF “BLACK SPOT” ON SHRIMP actual conscious indifference to the rights, safety, or welfare of the person Use as 1 ¼% solution. Stir 3 ¼ pounds (about 2 ½ affected. pints) of Sodium Metabisulfite in 30 gallons of fresh clean seawater until dissolved. Use plastic, rubber or plastic lined This definition is taken verbatim from TEX.CIV.PRAC. & container of adequate size and a wood or plastic stirrer. REM.CODE § 41.001(5). The jury also found, in answer Dehead shrimp and place in plastic sieve. Dip in solution to a separate question, that General Chemical's failure “was and agitate 1 minute. Drain well and pack in ice as usual. with a flagrant disregard for the rights of others and with actual awareness on [its] part ... that such a failure [would], in WARNING! reasonable probability, result in human death or great bodily

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

harm.” The parties do not argue that this second finding The piece of evidence on which plaintiffs place principal provides a different basis for punitive damages, and it is not reliance, is that General Chemical failed to change its warning clear why the trial court thought it appropriate to submit two despite its awareness of, in plaintiffs' words, “nine prior separate questions. In any event, it is necessary to consider deaths and/or injuries from the chemical.” Actually, plaintiffs only whether there is evidence to support a finding of gross offered evidence of three prior deaths and six prior injuries negligence. from the use of sodium metabisulfite. Of the non-fatal injuries, none was shown to have involved shrimpers in In Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 similar circumstances. Even if the circumstances of any injury (Tex.1981), this Court stated: had been similar and had been known to General Chemical, such knowledge of non-fatal injuries would not suggest that The essence of gross negligence its warning was inadequate in failing to warn that misuse is not the neglect which must, of of the product could be fatal. Of the three deaths, there course, exist. What lifts ordinary is no evidence concerning the circumstances of one which negligence into gross negligence is appears to have occurred in 1981, seven years before the the mental attitude of the defendant; De La Lastras' accident. The other two deaths did occur in that is what justifies the penal circumstances similar to the De La Lastras', and it is on this nature of the imposition of exemplary incident that plaintiffs rely for their contention that General damages. The plaintiff must show that Chemical knowingly failed to change its warning label. the defendant was consciously, i.e. knowingly, indifferent to his rights, *928 The parties refer to these two deaths as the “Cape welfare and safety. In other words, the Rojo” incident. It occurred in 1973, 15 years before the plaintiff must show that the defendant accident in this case. 1 The Coast Guard investigated knew about the peril but his acts or the incident and afterward wrote General Chemical and omissions demonstrated that he didn't other manufacturers of the same chemical, stating that care. “[p]romulgation and dissemination of safety information We also held that evidence that a defendant exercised some regarding this product may be indicated.” The Coast Guard care cannot be considered in determining the legal sufficiency report stated: “It is recommended that since it was reported of the evidence to support a finding of gross negligence. Id. at that Sodium Bisulfite Anhydrous is widely used by fisherman 920–922. While this part of our holding in Burk Royalty has [sic] throughout the industry, that an expeditious means been the subject of substantial criticism, General Chemical be devised to warn users of the chemical, aboard vessels, does not challenge Burk Royalty in this case. Rather, General of the potential dangers involved in its use in a confined Chemical argues that even under the restricted review allowed and unventilated space.” After receiving this report, General by Burk Royalty, there is no probative evidence in this case Chemical changed its warning twice, cautioning against the of gross negligence. Thus, the continued validity of the Burk dangers involved in the Cape Rojo incident, viz., use of the Royalty standard of review for the sufficiency of the evidence product in an unventilated space or in the hold of a boat. The of gross negligence is not at issue here. Coast Guard report does not state that users of the product should be warned that the chemical is deadly; in fact, if used While plaintiffs are entitled to have the evidence and all properly in accordance with the instructions, the chemical reasonable inferences which can be drawn from it viewed was not deadly. 2 in the light most favorable to the verdict, there must nevertheless be evidence in the record that General Chemical 1 Although General Chemical was not in existence at the was knowingly indifferent to the rights, welfare and safety time, its predecessor corporation was, and the parties of those who used its product. Even by plaintiffs' account, agreed at trial that notice of the Cape Rojo incident to there is not a wealth of such evidence in this record. Although General Chemical's predecessor was notice to General the trial of this case consumed six days, plaintiffs cite only Chemical. Thus, by referring to the manufacturer as three pieces of evidence in support of the jury's finding of General Chemical I include both that corporation and its gross negligence. The Court discusses only two of them. None predecessor. provides sufficient support for the finding.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

2 At trial, when plaintiffs' counsel asked the Coast Guard representative into evidence of conscious indifference. Again, official who wrote the report whether he had been trying even if General Chemical did not do everything it should have by his report to get General Chemical to warn that done, and even if it intended not to do all it could *929 its product could be deadly, he replied, “basically”. have done, there is still no probative evidence that it was Whatever the official may have been “basically” trying actually indifferent to its responsibility to warn of the dangers to do, the report itself neither stated or suggested that associated with its product. Moreover, the representative's General Chemical should warn that its product was testimony at trial of his intention at that time is, logically, no deadly. General Chemical was not simply being obtuse; evidence of General Chemical's intention prior to the De La none of the other manufacturers alerted to the Cape Rojo Lastras' deaths several years before. incident changed their warnings to include that their products could be deadly. The last piece of evidence cited by plaintiffs is the testimony There is no dispute that General Chemical modified its of their expert at trial that in his opinion General Chemical warning label following the Cape Rojo incident. Plaintiffs had been grossly negligent. The expert based his opinion may of course argue that General Chemical's modifications exclusively on the Cape Rojo incident and other instances did not go far enough, and the finding that the warning label of injuries cited by plaintiffs. For reasons already discussed, was inadequate indicates that the jury was persuaded by that none of those prior incidents are evidence that General argument. Gross negligence, however, requires more than an Chemical was grossly negligent. Stripped of all support, the inadequate response to perceived dangers; it requires actual expert's opinion is entitled to no weight and thus does not conscious indifference. Not only is there no evidence that support a finding of gross negligence. General Chemical reacted with indifference to the Cape Rojo incident, the evidence establishes that it attempted to comply There is no probative evidence that General Chemical was with the Coast Guard's recommendations. grossly negligent, and therefore there is no basis for an award of punitive damages. Even applying the restrictive standard of Plaintiffs' assertion that General Chemical knew of other Burk Royalty, plaintiffs must still show that General Chemical occurrences involving fatalities from the misuse of sodium knew of the peril its warning could cause and yet did not metabisulfite but did not care enough to change its warning care. General Chemical simply cannot be said to have been is based upon one incident 15 years before, after which indifferent to the dangers which could result from misuse General Chemical changed its warning twice. Assuming that of its product when it gave clear, conspicuous, bilingual General Chemical should have warned that misuse of its warnings, more thorough than any others in the industry, chemical could be fatal, I fail to see how that failure was gross which would have prevented the De La Lastras' deaths if only negligence—“actual conscious indifference” of others' safety they had heeded those warnings. The world is full of products, —when it changed its warning twice after the earlier incident, from cars to cleansers, which if misused may cause death. One used the most extensive warning of any other manufacturer should certainly expect that misuse of toxic chemicals may be of the product, and warned explicitly against the exact misuse lethal. Manufacturers may be obliged to warn against misuse which occurred in both the Cape Rojo and De La Lastra of their products. When they do, however, and when the incidents. The fact that there were only three deaths involving warnings given would have prevented an accident if they had the product over the 15 years before the accident in this case been followed, it is wrong to assign liability for the accident also suggests that General Chemical did not fail to respond to the manufacturer. It is worse still, however, to punish it appropriately. for not caring. General Chemical has been held liable for an accident its warning would have prevented. It has been The second piece of evidence on which plaintiffs rely to assessed over $13 million for the actual damages suffered support the finding of gross negligence is that General in the accident, including $2 million for the mental anguish Chemical's representative testified in response to cross- the De La Lastras suffered during the thirty seconds before examination by plaintiffs' counsel at trial that the company each lost consciousness. On top of this, the Court holds that did not intend to change its warning despite the De La General Chemical should be assessed a penalty of $8 million Lastras' deaths. Given General Chemical's position that its because it did not care that the De La Lastras might die from warning was adequate, its representative's testimony is hardly misusing its product. Absent any evidence to support it, the surprising. The jury's finding that the warning was inadequate award of punitive damages in this case is an injustice. does not transform the testimony of General Chemical's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

rejects this argument without explaining why. There are only two possible bases for the Court's conclusion: either II that a punitive damage award of four times actual damages General Chemical challenges the award of punitive damages never violates due process, or that such an award of punitive in this case on three separate grounds: that there is no damages does not violate due process in this case. The Court probative evidence of gross negligence to support an award of disavows the former premise: “We need not address whether punitive damages, that punitive damages cannot exceed four [a 4–1] ratio will in all cases withstand a constitutional times actual damages under TEX.CIV.PRAC. & REM.CODE challenge.” Ante at 925 n. 12. The second premise is thus the § 41.007, and that an award of punitive damages in this case only remaining basis for the Court's decision. violates the due process and due course of law guaranties of the United States Constitution and the Texas Constitution. It may be perfectly reasonable to conclude that an award of The Court rejects the evidentiary argument, accepts the $8 million punitive damages in this case does not violate due statutory argument, and ignores the constitutional argument. process. It is not reasonable, however, or even acceptable, to Because I accept the evidentiary argument, I need not reach this conclusion without saying why. The parties have consider the statutory argument, although I do not disagree argued the issue fully in their briefs, and we have received with the Court's analysis of the application of section 41.007 amicus curiae briefs on the issue. The issue is among those on in this case. I also need not reach General Chemical's which we granted General Chemical's application for writ of constitutional arguments. The Court, however, cannot avoid error. 35 TEX.SUP.CT.J. 508–509. The issue was addressed them. at oral argument. The issue is an important one in this state, in other states, and in the United States. The Court makes no In a footnote, the Court suggests that General Chemical attempt to justify its refusal to address the issue. It delivers concedes that an award of punitive damages equal to four the parties an edict rather than an opinion. times actual damages in this case does not offend due process. Ante at 925 n. 12. In the text of its opinion, however, the Court acknowledges that “General Chemical ... asserts that III the current Texas system of awarding punitive damages, and the resulting excessive punitive damage award deprived them As I stated at the outset, I agree with the Court that of the constitutional rights of due process....” Ante at 924. General Chemical has not preserved a complaint that recovery The text is correct; the footnote is not. Although *930 of nonpecuniary damages is barred by the application of General Chemical argues that punitive damages cannot federal maritime law. General Chemical makes an additional exceed four times actual damages under section 41.007, it argument, however, that the Court does not address. General does not concede that such an award comports with due Chemical contends that in circumstances indistinguishable process. The Court's footnote adds a non sequitur: “Contrary from this case, the Court reversed an award of loss of to the dissent's view, General Chemical has not raised a society damages in Van Tran. General Chemical is correct. constitutional challenge to section 41.007.” While it is true In Van Tran, Texaco objected to an award of mental anguish that General Chemical has not attacked the constitutionality damages as being precluded by federal maritime law, but it of section 41.007, that fact is not “contrary to the dissent's did not raise a similar objection to the award of loss of society view”. Nor is the fact significant. Section 41.007 caps damages. While Van Tran was on appeal, the United States punitive damages; it does not immunize any award up to the Supreme Court held in Miles v. Apex Marine Corp., 498 U.S. cap from constitutional scrutiny. General Chemical need not 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), that loss of society attack the statutory cap to argue that the system of awarding damages cannot be recovered under federal maritime law. punitive damages is flawed. General Chemical can and does We reversed the award of mental anguish damages to which argue that an award of punitive damages cannot exceed Texaco properly objected, but we also reversed the award of those allowed by statute, and also that any award in these loss of society damages to which Texaco did not object. circumstances offends due process. Following Van Tran, General Chemical's failure to object The Court itself recognizes in the text of its opinion that in the trial court to an award of nonpecuniary damages not General Chemical argues that the system itself, both before allowed under maritime law should not preclude it from and after judgment in the trial court, is invalid. The Court obtaining reversal on appeal. In my view, however, Van Tran

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

*931 For all these reasons, I concur in affirming the award was wrongly decided in this respect. A party, whether plaintiff of actual damages but dissent from the award of punitive or defendant, is entitled to the benefit of changes in the law damages. while a case is on appeal as long as those changes are fully retroactive. However, the party should ordinarily be required to have raised the issue at trial in order to assert it on appeal. I would not extend the error in Van Tran to this case. PHILLIPS, C.J., and ENOCH, JJ., join in this concurring and dissenting opinion. ******

APPENDIX

*932

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 General Chemical Corp. v. De La Lastra, 852 S.W.2d 916 (1993) Prod.Liab.Rep. (CCH) P 13,415

852 S.W.2d 916, Prod.Liab.Rep. (CCH) P 13,415

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 Group v. Vicento, 164 S.W.3d 724 (2005)

20 Cases that cite this headnote 164 S.W.3d 724 Court of Appeals of Texas, Houston (14th Dist.). [2] Evidence Due care and proper conduct in general Edward F. GROUP, III, D.C., Appellant In contrast to an expert who provides opinion v. testimony about how a health care provider Mark VICENTO, Appellee. departed from accepted standards of health care, an expert who provides opinion testimony about No. 14–04–00908–CV. | May 10, 2005. the causal relationship between the injury, harm, or damages claimed and the alleged departure Synopsis from the applicable standard of care in a health Background: Patient brought medical malpractice action care liability claim must be a physician who is against chiropractor, alleging that chiropractor should have otherwise qualified to render opinions on such a referred him to an expert spine surgeon for specialized causal relationship under the Rules of Evidence. treatment upon reviewing his MRI results and that V.T.C.A., Civil Practice & Remedies Code §§ chiropractor's failure to do so delayed patient's eventual 74.351(r)(5)(C); 74.403(a). surgery for approximately one year, exacerbating his injuries. The 190th District Court, Harris County, Jennifer Elrod, J., 9 Cases that cite this headnote denied chiropractor's motion to dismiss, and chiropractor appealed. [3] Appeal and Error Cases Triable in Appellate Court Statutory construction is a question of law, [Holding:] The Court of Appeals, John S. Anderson, J., held and appellate court reviews a trial court's that, as matter of apparent first impression anesthesiologist interpretation of a statute under a de novo was “practicing health care” in a field of practice that standard of review. involved the same type of care as chiropractor, and thus, anesthesiologist satisfied statutory requirements so as to be 2 Cases that cite this headnote expert witness.

[4] Statutes Affirmed. Intent When interpreting statutes, courts' primary objective is to ascertain and give effect to legislative intent. West Headnotes (10) 1 Cases that cite this headnote [1] Appeal and Error Rulings on Motions Relating to Pleadings [5] Statutes Appellate court reviews for abuse of discretion Plain Language; Plain, Ordinary, or a trial court's decision on a motion to dismiss Common Meaning under statute permitting dismissal of medical Statutes malpractice claim against defendant physician or Statute as a Whole; Relation of Parts to health care provider who has not been served Whole and to One Another with expert report within specified time period. When interpreting statute, courts look first to the V.T.C.A., Civil Practice & Remedies Code § plain and common meaning of the language of 74.351. the statute, and courts must read the statute as a

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Group v. Vicento, 164 S.W.3d 724 (2005)

whole and not just isolated portions. V.T.C.A., by defendant health care provider, “practicing Government Code § 311.011. health care” is not limited to particular activities, specified in separate statute, of training others Cases that cite this headnote in same field or serving as consulting health care provider and being licensed, certified, or [6] Statutes registered in same field as defendant; term Giving effect to statute or language; “includes,” in statute setting forth those two construction as written alternatives, was term of enlargement and not of limitation or exclusive enumeration. Statutes V.T.C.A., Civil Practice & Remedies CodeT § Statute as a Whole; Relation of Parts to 74.402(a)(1,2), (b); V.T.C.A., Government Code Whole and to One Another § 311.005(13). If the meaning of the statutory language is unambiguous, court must interpret it according 9 Cases that cite this headnote to its terms, giving meaning to the language consistent with other provisions in the statute. [10] Evidence 1 Cases that cite this headnote Due care and proper conduct in general Anesthesiologist, who specialized in anesthesia and pain management, was “practicing health [7] Statutes care” in a field of practice that involved the Superfluousness same type of care or treatment as chiropractor, Statutes and thus, anesthesiologist satisfied statutory Absent terms; silence; omissions requirements so as to be expert witness in When interpreting statute, court reads every medical malpractice action brought against word as if it was deliberately chosen and chiropractor; anesthesiologist stated that he presumes that omitted words were excluded knew accepted standard of care required of purposefully. chiropractors, he stated that pain management modalities he used were same ones that 1 Cases that cite this headnote chiropractors used, he stated that chiropractors and pain management physicians used similar [8] Statutes methods to evaluate patients and determine Construction in View of Effects, whether to refer them to specialists. V.T.C.A., Consequences, or Results Civil Practice & Remedies Code § 74.402(b) Statutes (1,2,3). Purpose 11 Cases that cite this headnote When interpreting statute, courts consider the objective the law seeks to obtain and the consequences of a particular construction.

Cases that cite this headnote Attorneys and Law Firms

*725 Michele Quattlebaum and Tammy Savidge–Moore, [9] Evidence Houston, for appellants. Due care and proper conduct in general R. Gary Stephens and Maggie D. Conner, Houston, for For purpose of statute providing that expert appellees. witness whose report plaintiff offers in support of health care liability claim must be “practicing Panel consists of Justices ANDERSON, HUDSON, and health care” in field of practice that involves FROST. same type of care or treatment as that delivered

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Group v. Vicento, 164 S.W.3d 724 (2005)

Vicento timely filed the expert report of Rezik Saqer, M.D., pursuant to Texas Civil Practice and Remedies Code section OPINION 74.351. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 (Vernon 2005). In response, Group filed a motion to JOHN S. ANDERSON, Justice. dismiss Vicento's case on the ground that Dr. Saqer's expert report did not comply with section 74.351 of the Texas Civil In this medical malpractice case, appellant appeals the trial Practice and Remedies Code. Group alleged in his motion court's denial of his motion to dismiss challenging the to dismiss that Dr. Saqer was not qualified to opine on the sufficiency of the appellee's expert report. In a single issue, chiropractic standard of care and Dr. Saqer's expert report was appellant argues the trial court erred in denying his motion inadequate. Group requested the trial court to order Vicento to dismiss as a matter of law because the appellee's expert is to cure the deficiency within 30 days or dismiss Vicento's not qualified to render an opinion regarding the chiropractic cause of action. The trial court ordered Vicento to file a report standard of care under Chapter 74 of the Texas Civil Practice complying with the statute within thirty days. and Remedies Code. We affirm. Vicento timely filed an amended expert report by Dr. Saqer. Group responded by filing a motion re-urging his prior motion *726 FACTUAL AND to dismiss, arguing the amended expert report is deficient PROCEDURAL BACKGROUND because (1) Dr. Saqer is not qualified to render an opinion on the chiropractic standard of care because he does not Appellee Mark Vicento, a police officer, was injured fit the statutory definition of “practicing health care” and is in an automobile accident in September 2001. Vicento not qualified “on the basis of training and experience” as immediately sought treatment for his injuries at a chiropractic these terms are defined by section 74.402 of the Texas Civil clinic. Appellant Edward F. Group, III, D.C., a chiropractor, Practice and Remedies Code, (2) Dr. Saqer's report does not treated Vicento's injuries. In November 2001, Group referred state how Group deviated from the chiropractic standard of Vicento for an MRI (magnetic resonance imaging) of the care, and (3) Dr. Saqer's report fails to comply with section lumbar spine. Group continued to treat Vicento over the next 74.403 in failing to state how Group's actions caused any year. In 2003, Vicento underwent back surgery. injury to Vicento.

Vicento contends Group should have referred him to an expert The trial court denied Group's second motion to dismiss. spine surgeon for specialized treatment upon reviewing his Group filed this interlocutory appeal from the trial court's MRI results in November 2001, 1 and Group's failure to do order. 2 so delayed Vicento's eventual surgery for approximately one year, exacerbating his injuries. Vicento filed this medical 2 Texas Civil Practice and Remedies Code section 51.014 malpractice lawsuit against Group in January 2004, alleging permits an interlocutory appeal to be filed from an claims of medical negligence. Specifically, Vicento claims order of a district court that denies all or part of the Group “was negligent in failing to comply with the standard relief sought by a motion under section 74.351(b) of of care by failing to timely and adequately (i) test, (ii) assess, the Texas Civil Practice and Remedies Code. TEX. (iii) diagnose, (iv) treat, and (v) refer [Vicento] to a specialist CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) when his condition worsened and deteriorated.” Vicento (Vernon Supp.2005). Group's motion to dismiss sought asserts Group should have known his condition was such that relief under section 73.351(b) and alleged Vicento's he needed a specialist for treatment, and he contends Group's expert report was deficient. See TEX. CIV. PRAC. negligent acts and omissions delayed his spine surgery for a & REM.CODE ANN. § 74.351(b). Section 74.351(b) period of approximately two years, thereby aggravating his permits a trial court to award a defendant health care provider reasonable attorney's fees and costs and to condition. dismiss a plaintiff's claims if an expert report is not timely served. See id. An expert report “has not been 1 The MRI report showed herniated lumbar discs with served” for purposes of section 74.351(b) if elements significant spine and foramen stenosis at four different of the report are found deficient. TEX. CIV. PRAC. & lumbar spine levels. REM.CODE ANN. § 74.351(c).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Group v. Vicento, 164 S.W.3d 724 (2005)

lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or *727 DISCUSSION professional or administrative services directly related to A. Standard of Review health care, which proximately results in injury to or death [1] We review a trial court's decision on a motion to dismiss of a claimant, whether the claimant's claim or cause of a case under Texas Civil Practice and Remedies Code section action sounds in tort or contract.” TEX. CIV. PRAC. & 74.351 for an abuse of discretion. See Am. Transitional Care REM.CODE ANN. § 74.001(13) (Vernon 2005) (emphasis Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) added). Chiropractors fall under the definition of a “health (holding trial court's decision to dismiss a case under former care provider.” TEX. CIV. PRAC. & REM.CODE ANN. § article 4590i, section 13.01(e) (predecessor to Texas Civil 74.001(12)(A)(v). Practice and Remedies Code section 74.351) is reviewed for an abuse of discretion). Under section 74.351(l ), “[a] court shall grant a motion challenging the adequacy of an expert report only it if appears to the court, after hearing, that the report does not represent B. Expert Reports and Texas Civil Practice and an objective good faith effort to comply with the definition of Remedies Code Section 74.351 an expert report....” TEX. CIV. PRAC. & REM.CODE ANN. In 2003, the Texas Legislature enacted significant changes in § 74.351(l ). An “expert report” is defined as: the expert report requirement for medical malpractice cases. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 74.001–.507 [A] written report by an expert that (Vernon 2005) (effective September 1, 2003, formerly article provides a fair summary of the 4590i of the Texas Revised Civil Statutes, the Medical expert's opinions as of the date of the Liability and Insurance Improvement Act). Section 74.351 report regarding applicable standards of the Texas Civil Practice and Remedies Code requires a of care, the manner in which the care plaintiff who files a “health care liability claim” to file an rendered by the physician or health expert report within 120 days of filing its claim: care provider *728 failed to meet the standards, and the causal relationship (a) In a health care liability claim, between that failure and the injury, a claimant shall, not later than the harm, or damages claimed. 120th day after the date the claim was filed, serve on each party or the TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6). party's attorney one or more expert reports, with a curriculum vitae C. Qualifications of an Expert Witness in a Suit Against of each expert listed in the report a Health Care Provider and Texas Civil Practice and for each physician or health care Remedies Code Section 74.402 provider against whom a liability An expert providing opinion testimony about how a “health claim is asserted. The date for care provider,” such as chiropractor Group, departed from serving the report may be extended accepted standards of health care must be qualified to testify by written agreement of the affected under the requirements of section 74.402. See TEX. CIV. parties. Each defendant physician or PRAC. & REM.CODE ANN. § 74.351(r)(5)(B). Section health care provider whose conduct 74.402(b) lists three specific qualifications an expert witness is implicated in a report must file must possess in order to provide opinion testimony on how and serve any objection to the a health care provider departed from accepted standards of sufficiency of the report not later health care: than the 21st day after the date it was served, failing which all objections (b) In a suit involving a health care liability claim against a are waived. health care provider, a person may qualify as an expert witness on the issue of whether the health care provider TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a). A departed from accepted standards of care only if the “health care liability claim” is defined as “a cause of action person: against a health care provider or physician for treatment,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Group v. Vicento, 164 S.W.3d 724 (2005)

REM.CODE ANN. § 74.402(d). A court may depart from the (1) is practicing health care in a field of practice that criteria if, under the circumstances, there is good reason to involves the same type of care or treatment as that admit *729 the expert's testimony, but if the court departs delivered by the defendant health care provider, if the from the criteria, the court shall state on the record the reason defendant health care provider is an individual, at the for admitting the testimony. Id. Here, the trial court's order time the testimony is given or was practicing that type denying Group's motion to dismiss does not state the court of health care at the time the claim arose; departed from section 74.402's criteria.

(2) has knowledge of accepted standards of care for [2] In contrast to an expert who provides opinion testimony health care providers for the diagnosis, care, or about how a health care provider departed from accepted treatment of the illness, injury, or condition involved standards of health care, an expert who provides opinion in the claim; and testimony about the causal relationship between the injury, (3) is qualified on the basis of training or experience harm, or damages claimed and the alleged departure from to offer an expert opinion regarding those accepted the applicable standard of care in a health care liability claim standards of health care. must be a physician who is otherwise qualified to render opinions on such a causal relationship under the Texas Rules TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b) of Evidence. See TEX. CIV. PRAC. & REM.CODE ANN. §§ (Vernon 2005) (emphasis added). The above emphasized 74.351(r)(5)(C), 74.403(a) (Vernon 2005). terms are specifically defined in subsections (a) and (c) of section 74.402. “Practicing health care” is defined as This is a case of first impression under newly enacted section including: 74.402.

(1) training health care providers in the same field as the defendant health care provider at an accredited D. Group's Motion to Dismiss educational institution; or Group argues the trial court erred in denying his motion to dismiss because Dr. Saqer is not qualified to render (2) serving as a consulting health care provider and being an expert opinion regarding the chiropractic standard of licensed, certified, or registered in the same field as the care. Group's challenges to Dr. Saqer's qualifications focus defendant health care provider. on section 74.402, subsections (a), (b)(1), (3) and (c)(2). 3 TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(a)(1), First, Group asserts Dr. Saqer is not statutorily qualified (2) (emphasis added). To determine whether an expert “is to render an opinion regarding the chiropractic standard qualified on the basis of training or experience” under of care or a breach thereof because he is not “practicing subsection (b)(3), a court is to consider whether the expert: health care” as defined by section 74.402(a). Group contends section 74.402(a) requires Dr. Saqer to be (1) practicing (1) is certified by a licensing agency of one or more states health care in a field of practice involving the same type of the United States or a national professional certifying of care or treatment as Group, the field of chiropractic, (2) agency, or has other substantial training or experience, licensed as a chiropractor, or (3) teaching chiropractic at in the area of health care relevant to the claim; and an accredited chiropractic school. Second, Group argues Dr. Saqer is not qualified “on the basis of training or experience” (2) is actively practicing health care in rendering health under section 73.402(b)(3) because he is not a chiropractor care services relevant to the claim. and is not actively “practicing health care” in the field of TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(c)(1), (2) chiropractic. (emphasis added). 3 In his motion to dismiss, Group also complained Dr. Section 74.402(d) provides a court “shall apply” the criteria Saqer's report does not state how Group deviated from specified in section 74.402(a)-(c) in determining whether an the chiropractic standard of care, and Group challenged expert is qualified to offer expert testimony on the issue Dr. Saqer's qualifications to render an expert opinion of whether a defendant health care provider departed from on causation, under section 74.403, arguing Dr. Saqer's testimony was not based on a reasonable medical accepted standards of health care. TEX. CIV. PRAC. &

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Group v. Vicento, 164 S.W.3d 724 (2005)

probability. On appeal, Group has abandoned these two Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999); grounds for dismissal. see TEX. GOV'T CODE ANN. § 311.023 (Vernon 2005). In response, Vicento asserts the trial court's denial of Group's We look first to the plain and common meaning of the motion to dismiss was proper because Dr. Saqer's expert language of the statute. Fitzgerald, 996 S.W.2d at 865; report demonstrates he has the requisite knowledge, skill, see TEX. GOV'T CODE ANN. § 311.011 (Vernon 2005). experience, training, and education regarding the treatment We must read the statute as a whole and not just isolated of patients with conditions similar to Vicento's to qualify portions. Tex. Dep't. of Transp. v. City of Sunset Valley, 146 him as an expert as to the standard of care and causation in S.W.3d 637, 642 (Tex.2004). If the meaning of the statutory this case. Vicento contends Dr. Saqer's report establishes he language is unambiguous, we must interpret it according to practices health care in a field that involves the same type its terms, giving meaning to the language consistent with of care and treatment as that delivered by Group, and he has other provisions in the statute. Id. We read every word as if expertise in the particular areas involved in this case. Vicento it were deliberately chosen and presume that omitted words further asserts section 74.402 does not require an expert in a were excluded purposefully. See Cornyn v. Universe Life suit against a chiropractor to be a chiropractor in order to be Ins. Co., 988 S.W.2d 376, 378–79 (Tex.App.-Austin 1999, pet. denied). We also consider the objective the law seeks qualified to opine on the standard of care. 4 to obtain and the consequences of a particular construction. Sunset Valley, 146 S.W.3d at 642. 4 In Nicodeme v. Bailey, 243 S.W.2d 397, 399–402 (Tex.Civ.App.-El Paso 1951, writ ref'd n.r.e.), two We apply the above principles in construing section 74.402, physicians testified on behalf of a patient in a medical and we examine Dr. Saqer's qualifications in light of section malpractice suit the patient filed against a chiropractor. 74.402's requirements. The court held the patient's evidence failed to establish the chiropractor's negligence was a proximate cause of the plaintiff's injuries. Nicodeme does not address the 2. Section 74.402(a) and (b)(1): “Practicing Health Care” specific issue of the doctors' qualifications to render an First, under section 74.402(b)(1), to qualify as an expert opinion against the defendant chiropractor, but the court does acknowledge the chiropractor's conduct should witness on the issue of whether Group departed from accepted be judged against the chiropractic system of healing. standards of care, Dr. Saqer must be “practicing health Nicodeme, 243 S.W.2d at 401 (“The lawful activity of a care in a field of practice that involves the same type of chiropractor is confined to the treatment of the spine in a care or treatment as that delivered by the defendant health certain manner. In substance, the treatment is limited to care provider, if the defendant health care provider is an the adjustment of the joints or vertebrae of the spine.”). individual, at the time the testimony is given or was practicing Other cases cited by Vicento in his brief involve that type of health care at the time the claim arose.” TEX. medical malpractice claims brought against physicians CIV. PRAC. & REM.CODE ANN. § 74.402(b)(1). analyzing whether expert physicians who do not specialize in the same area as a defendant physician are Group argues the term “practicing health care” as defined qualified to render an expert opinion. See, e.g., Roberts by subsection (a) requires a qualified expert in a v. Williamson, 111 S.W.3d 113 (Tex.2003); Broders v. chiropractic malpractice case to either be a chiropractor, Heise, 924 S.W.2d 148 (Tex.1996); Silvas v. Ghiatas, train chiropractors at an accredited educational institution, or 954 S.W.2d 50 (Tex.App.-San Antonio 1997, pet. denied). These cases do not apply newly enacted serve as a consulting health care provider to chiropractors section 74.402, but they are nevertheless instructive and be licensed, certified, or registered as a chiropractor. and provide guidance on the issue presented. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(a) (1), (2) (“For purposes of [section 74.402], ‘practicing *730 1. Rules of Statutory Construction health care’ includes: (1) training health care providers in [3] [4] [5] [6] [7] [8] Statutory construction isthea same field as the defendant health care provider at question of law, and we review a trial court's interpretation an accredited educational institution; or (2) serving as a of a statute under a de novo standard of review. Tex. Dep't of consulting health care provider and being licensed, certified, Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). When or registered in the same field as the defendant health care interpreting statutes, our primary objective is to ascertain provider.”) (emphasis added). Group contends Dr. Saqer does and give effect to legislative intent. Fitzgerald v. Advanced not meet the statutory definition of “practicing health care.” In response, Vicento argues Dr. Saqer's report demonstrates

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Group v. Vicento, 164 S.W.3d 724 (2005)

he has *731 adequate knowledge, skill, experience, training, in the wording between the House and Senate versions and education regarding his treatment of patients with may be due to concerns expressed by individuals who conditions similar to Vicento's to qualify him as an expert testified at public hearings conducted by the Senate under subsection (b)(1). State Affairs Committee on House Bill 4 regarding potential problems with the “in the same field” language. Hearings on Tex. H.B. 4 Before the Senate State Affairs [9] Group's asserted construction of section 74.402, Committee, 78th Leg., R.S. 17–18 (April 15, 2003) subsections (a)(1)-(2) and (b)(1), improperly limits and (transcript available from Senate Staff Services Office). confines the definition of the term “practicing health care.” Subsection (a) uses the term “includes” in defining Reading section 74.402 subsections (a) and (b)(1) together, “practicing health care.” Although Chapter 74 does not define subsection (a) expands upon the definition of “practicing the term “includes,” the Code Construction Act defines health care” to include qualified teachers and consulting “includes” as a term “of enlargement and not of limitation or health care providers who may not otherwise be qualified exclusive enumeration, and use of [includes] does not create under subsection (b)(1) because they are not practicing a presumption that components not expressed are excluded.” health care and instead teach or consult. Group's proffered TEX. GOV'T CODE ANN. § 311.005(13) (Vernon 2005); see construction of subsection (a) and (b)(1) results in a person Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 25–26 being qualified as an expert only if the person trains health (Tex.App.-Tyler 2000, pet. denied). Thus, section 74.402(a)'s care providers in the same field as the defendant health care two definitions of “practicing health care” are not exclusive. provider or if the person serves as a consulting health care provider and is licensed, certified, or registered in the same In addition, under the literal language of section 74.402(b) field as the defendant health care provider. According to (1), an expert is only required to be “practicing health care Group, if a person practices health care in a field of practice in a field of practice that involves the same type of care that involves the same type of care or treatment as that or treatment as that delivered by the defendant health care delivered by the defendant health care provider, but the person provider.” See TEX. CIV. PRAC. & REM.CODE ANN. § is not certified in the same field of practice as the defendant 74.402(b)(1) (emphasis added). Subsection (b)(1) does not *732 health care provider, is not a teacher, or is not a require an expert to be practicing health care in the same qualified consultant, the person is unqualified. field as the defendant health care provider, here, the field of chiropractic. Instead, under subsection (b)(1), the expert only Group's asserted construction of section 74.402(a) is must practice health care in a field of practice involving the unnecessarily restrictive and is contrary to the plain and common meaning of the language of the statute. Having same type of care or treatment. 5 considered the language of section 74.402 in its entirety, we disagree with Group that the two definitions of “practicing 5 A conference committee report on House Bill 4 conducts health care” under section 74.402(a) are exclusive. a side-by-side comparison of the Texas House of Representatives' version of the bill with the Senate's version. CONFERENCE COMM. REPORT, Tex. H.B. 3. Dr. Saqer's Qualifications and Section 74.402 4, 78th Leg., R.S. (2003). The report shows the House's version of section 74.402(b)(1) stated a person may a. Section 74.402(b)(1) qualify as an expert under that subsection if the person [10] We now analyze whether Dr. Saqer satisfies the “(1) is practicing health care in the same field of practice requirements of section 74.402(b)(1). Dr. Saqer's expert as the defendant health care provider ....” In contrast, report and curriculum vitae reveal he is a licensed medical the Senate's version of subsection (b)(1) stated a person doctor, an anesthesiologist, who specializes in anesthesia may qualify as an expert if the person “(1) is practicing and pain management. He has been practicing anesthesia health care in a field of practice that involves the and pain management in the Houston area for the past same type of care or treatment as that delivered by seven years. Dr. Saqer is the owner and president of the defendant health care provider, if the defendant health care provider is an individual ....” The Conference Houston Preferred Anesthesia, a group of anesthesiologists Committee on House Bill 4 adopted the Senate's version, that provide anesthesia services to different hospitals and which does not require a qualified expert to practice in outpatient surgery centers. He is board eligible by the the same field as the defendant health care provider, and American Board of Anesthesiologists and a Board Diplomat this version was enacted into law. See id. The difference by the American Academy of Pain Management. He also

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Group v. Vicento, 164 S.W.3d 724 (2005)

is the founder and manager of Texas Pain Solutions, which 100 patients every week, and more than 20% of them provides invasive and non-invasive pain services through suffer from conditions similar to Mr. Vicento. I know different hospitals and multiple clinics in the Houston area. the accepted standard of care required of chiropractors regarding *733 the type of injury and treatment involved Although Dr. Saqer does not train chiropractors at an in this case, because my specialty overlaps and intertwines accredited educational institution, does not serve as a with chiropractic practice. Specifically, I engage in consulting health care provider to chiropractors, and is modalities of treatment, which include but are not limited not licensed, certified, or registered as a chiropractor, 6 as to pain management modalities. These areas include but are discussed above, this is not determinative of Dr. Saqer's not limited to the following: qualifications under subsection (b)(1). Rather, the focus of 1. Massage Therapy; our inquiry is whether Dr. Saqer practices health care in a field of practice that involves the same type of care or 2. Oscillation of pain centers; treatment as that delivered by Group. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b)(1). 3. Relief of complications of muscle spasms;

6 4. Neurological pain causation; Under the Occupations Code, “[a] person practices chiropractic” ... if the person: 5. Accupuncture treatment; (1) uses objective or subjective means to analyze, examine, or evaluate the biomechanical condition 6. Modern methods of physical therapy. of the spine and musculoskeletal system of the human body; These are the same areas that chiropractors use to (2) performs nonsurgical, nonincisive procedures, manipulate and treat patients. For example, massage including adjustment and manipulation, to improve therapy includes, but is not limited to: [i] increasing the subluxation complex or the biomechanics of the circulation to promote healing, [ii] relieving cramps and musculoskeletal system; muscle spasm, [iii] pain relief of spinal injuries and (3) represents to the public that the person is a headaches by decreasing muscle tension, [iv] manipulating chiropractor; or limbs and the spine to relieve impingement of nerve (4) uses the term “chiropractor,” “chiropractic,” roots and other complications from injuries, and [v] “doctor of chiropractic,” “D.C.,” or any derivative manipulation of the body to increase mobility due to the of those terms or initials in connection with the person's name. effects of degenerative disc disease and the aging process. TEX. OCC.CODE ANN. § 201.002(b) (Vernon These treatments are utilized by chiropractors and pain 2004). The statute further provides the practice of management physicians alike. chiropractic does not include incisive or surgical procedures, the prescription of controlled substances, Additionally, chiropractors and pain management dangerous drugs, or any other drug that requires a physicians use similar methods to evaluate patients and prescription, or the use of x-ray therapy or therapy determine whether to refer them to a specialist for surgical that exposes the body to radioactive materials. TEX. consultation. For example, during massage therapy, I often OCC.CODE ANN. § 201.002(c). become aware of other additional needs in connection with In his report, Dr. Saqer states the following with regard to his pain management. Some of the methodology indicates an qualifications: absence of pain in certain manipulations of the human body which further delineates the nature and extent of the injury. As a practicing medical doctor specializing in anesthesia By performing pain management methods, either by way and pain management, I know the accepted standard of of injection, manipulation, or massage, I am able to further care required of chiropractors practicing under the same isolate the cause of the injury and then concentrate on or similar circumstances as was Chiropractor Edward F. alleviation of the pain by non-surgically treating the area Group during the past seven years. As a pain specialist, of the injury which is causing the pain in the arm and the I treat patients with all types of pain, including be [sic] hand or by referring for surgical intervention, if needed. related to work, motor vehicle accident, arthritis, cancer pain, or post-surgical pain. I treat on average more than A chiropractor, though he cannot do or perform injections, utilizes similar methodology in making determinations as

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Group v. Vicento, 164 S.W.3d 724 (2005)

74.402(b)(3). To determine whether an expert is qualified to the cause of pain. It is ... during that determination/ “on the basis of training or experience,” subsection (c) of the diagnostic period that a chiropractor should become aware statute instructs courts to consider whether the expert “(1) of the need to send that patient for further and additional is certified by a licensing agency of one or more states of medical care and treatment that is more sophisticated than the United States or a national professional certifying agency, he either legally or ethically can perform. or has other substantial training or experience in the area of I am qualified to do and perform many of the same things health care relevant to the claim; and (2) is actively practicing that chiropractors are competent to do and perform, but health care in rendering health care services relevant to the my level of expertise, by reason of my training, experience claim.” TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(c) and education, enables me to perform a magnitude of (1)-(2) (emphasis added). other procedures that chiropractors cannot use. As a pain management physician I work closely together with Dr. Saqer states in his report that he has experience in the area chiropractors; I have supervised chiropractors, evaluated of chiropractic, his “specialty overlaps and intertwines with patients of chiropractors, been assisted by chiropractors chiropractic practice,” and 20% of his patients suffer from and taught chiropractors modern pain relief methodology. injuries similar to Mr. Vicento's. In addition, Dr. Saqer states It is by reason of this overlapping area between he is a licensed physician practicing anesthesiology and pain chiropractic measures and pain management areas that I management. Dr. Saqer satisfies subsection (c)(1). am qualified to testify regarding chiropractic procedures. Specifically, because determining when to refer a patient With regard to subsection (c)(2), Group argues Dr. Saqer for neurosurgical consultation is common to both pain does not satisfy this subsection because he is not “practicing management and chiropractic, I am qualified to testify as to health care.” See TEX. CIV. PRAC. & REM.CODE ANN. the standard of care for referral of a patient to a specialized § 74.402(c)(2). Subsection(c)(2) inquires whether the person spine surgeon. “is actively practicing health care in rendering health care services relevant to the claim.” Id. As discussed above with *734 We conclude, based on the foregoing, Dr. Saqer regard to subsection (b)(1), Dr. Saqer's expert report shows he is “practicing health care” in a field of practice that is actively practicing health care services relevant to Vicento's involves the same type of care or treatment as chiropractor claim. Thus, he satisfies subsection (c)(2). Group. Accordingly, Dr. Saqer satisfies section 74.402(b) (1)'s requirements. Having concluded Dr. Saqer satisfies both prongs of subsection (c), he, therefore, is qualified on the basis of training or experience under subsection (b)(3) to offer an b. Section 74.402(b)(2) expert opinion regarding accepted chiropractic standards of Under section 74.402(b)(2), Dr. Saqer must have “knowledge care. 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.” TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b)(2). On appeal, Group does not specifically CONCLUSION argue Dr. Saqer does not satisfy subsection (b)(2). Dr. Saqer Dr. Saqer satisfies the requirements of section 74.402(b)(1)- explains in his report he has knowledge of the accepted (3). Accordingly, we hold the trial court did not abuse its standards of care for chiropractors for the diagnosis, care, and discretion in denying Group's motion to dismiss Vicento's treatment of the type of injury involved in this claim. Thus, expert report and overrule appellant's sole issue. Dr. Saqer satisfies section 74.402(b)(2). We affirm the trial court's order denying appellant's motion to dismiss. c. Section 74.402(b)(3) Finally, we examine whether Dr. Saqer satisfies the third requirement set forth in section 74.402(b)(3), that he be All Citations “qualified on the basis of training or experience to offer an expert opinion regarding ... accepted standards of health 164 S.W.3d 724 care.” See TEX. CIV. PRAC. & REM.CODE ANN. §

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Group v. Vicento, 164 S.W.3d 724 (2005)

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Hillery v. Kyle, 371 S.W.3d 482 (2012)

371 S.W.3d 482 West Headnotes (12) Court of Appeals of Texas, Houston (1st Dist.). [1] Appeal and Error Robert HILLERY, M.D., and Southwest Rulings on Motions Relating to Pleadings Surgical Associates, P.A., Appellants, A trial court's ruling on a motion to dismiss a v. health care liability lawsuit based on adequacy of Suzette KYLE, Patrice Ward, Vicki, Kyle, and an expert report under the Medical Liability and Jamessee Kesee, individually and on behalf of Insurance Improvement Act is reviewed under the Estate of Melinda Kyle, Deceased, Appellees. an abuse of discretion standard; a trial court abuses its discretion if it acts in an arbitrary No. 01–11–00708–CV. | May 17, 2012. or unreasonable manner without reference to guiding rules or principles, or if it clearly fails Synopsis to analyze or apply the law correctly. V.T.C.A., Background: Surviving family members of patient who died Civil Practice & Remedies Code § 74.351. after suffering post-operative complications brought health care liability claim against physician who performed below- Cases that cite this headnote knee amputation on patient's right leg. Physician moved to dismiss suit, objecting to medical expert report on the [2] Health ground that medical expert, who was a cardiologist, was Affidavits of merit or meritorious defense; not qualified to opine on the standard of care applicable to expert affidavits physician, a general surgeon. The 240th District Court, Fort In reviewing whether an expert report complies Bend County, Thomas R. Culver III, J., denied physician's with the Medical Liability and Insurance motion to dismiss. Physician appealed. Improvement Act, courts evaluate whether the report represents a good-faith effort to comply with the statute; in making this evaluation, courts Holdings: The Court of Appeals, Rebeca Huddle, J., held must look only at the information contained that: within the four corners of the report. V.T.C.A., Civil Practice & Remedies Code § 74.351. [1] medical expert who was a cardiologist was qualified to opine on the standard of care applicable to physician who was 2 Cases that cite this headnote a general surgeon; [3] Health [2] physician waived for appellate review issue as to whether Affidavits of merit or meritorious defense; patient's medical expert report was insufficient with respect expert affidavits to elements of standard of care and breach; and Medical expert who was a cardiologist was qualified to opine on the standard of care [3] report provided a fair summary of the causal relationship applicable to physician, who was a general between physician's alleged failure to administer post- surgeon, for purposes of satisfying requirements operative medication and patient's development of blood clots of medical expert report pursuant to Medical and pulmonary emboli. Liability and Insurance Improvement Act, in medical malpractice action involving a patient Affirmed. who died following amputation of leg; expert's report and curriculum vitae demonstrated his knowledge and experience treating patients in circumstances similar to those that formed the basis of the allegations in instant claim,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Hillery v. Kyle, 371 S.W.3d 482 (2012)

which specifically involved the alleged failure to properly anti-coagulate patient following the 4 Cases that cite this headnote surgery. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(5)(A). [7] Health Affidavits of merit or meritorious defense; 1 Cases that cite this headnote expert affidavits In a health care liability action, the medical [4] Health expert must, in his report, explain the basis of Affidavits of merit or meritorious defense; his statements to link his conclusions to the facts. expert affidavits V.T.C.A., Civil Practice & Remedies Code § Although the medical expert report necessary to 74.351. support a health care liability claim need not marshal all the plaintiff's proof, it must include Cases that cite this headnote the expert's opinions on the three statutory elements of standard of care, breach, and [8] Health causation. V.T.C.A., Civil Practice & Remedies Affidavits of merit or meritorious defense; Code § 74.351. expert affidavits

Cases that cite this headnote In assessing the sufficiency of a medical expert report in a health care liability action, the trial court may not draw any inferences, and [5] Health instead must rely exclusively on the information Affidavits of merit or meritorious defense; contained within the report's four corners. expert affidavits V.T.C.A., Civil Practice & Remedies Code § In detailing the three statutory elements of 74.351. standard of care, breach, and causation., the medical expert report necessary to support a 1 Cases that cite this headnote health care liability claim must provide enough information to fulfill two purposes: first, it must [9] Appeal and Error inform the defendant of the specific conduct the Objections to evidence and witnesses plaintiff has called into question, and, second, Physician waived for appellate review issue as it must provide a basis for the trial court to to whether patient's medical expert report was conclude that the claims have merit. V.T.C.A., insufficient with respect to elements of standard Civil Practice & Remedies Code § 74.351. of care and breach, in health care liability 1 Cases that cite this headnote action, where, at trial, physician objected only on grounds that the report was conclusory concerning the element of causation. V.T.C.A., [6] Health Civil Practice & Remedies Code § 74.351. Affidavits of merit or meritorious defense; expert affidavits Cases that cite this headnote A medical expert report that merely states the expert's conclusions as to the standard of [10] Health care, breach, and causation does not fulfill the Affidavits of merit or meritorious defense; purposes of an expert report in a health care expert affidavits liability case, which is to inform the defendant of Medical expert's report provided a fair summary the specific conduct the plaintiff has called into of the causal relationship between physician's question and provide a basis for the trial court to alleged failure to administer post-operative conclude that the claims have merit. V.T.C.A., medication and patient's development of blood Civil Practice & Remedies Code § 74.351. clots and pulmonary emboli, which resulted in

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Hillery v. Kyle, 371 S.W.3d 482 (2012)

patient's death, and thus, report was sufficient to support health care liability claim; report Panel consists of Chief Justice RADACK and Justices explained how formation of clots caused JENNINGS and HUDDLE. inadequate oxygenation, respiratory arrest, and brain injury, report described and explained risk factors for developing clots and pulmonary *485 OPINION emboli, many of which existed in patient's case, REBECA HUDDLE, Justice. predisposing her to their development, including a trauma in the form of a surgical amputation Robert Hillery, M.D. and Southwest Surgical Associates, of patient's leg below the knee. V.T.C.A., Civil P.A. bring this interlocutory appeal challenging the trial Practice & Remedies Code § 74.351(r)(6). court's denial of their motion to dismiss a health care liability claim. See TEX. CIV. PRAC. & REM.CODE ANN. Cases that cite this headnote § 51.014(a)(9) (West Supp.2011). Suzette Kyle, Patrice Ward, Vicki, Kyle, and Jamessee Kesee, individually and on [11] Health behalf of the Estate of Melinda Kyle, deceased (collectively, Affidavits of merit or meritorious defense; “the Kyles”), brought a health care liability claim against expert affidavits Hillery and Southwest, among other defendants, asserting that To support a health care liability claim, an expert negligence in their care and treatment of Melinda Kyle caused cannot merely state in a medical expert report her death. After the Kyles served an expert report as required his conclusions or provide insight about the by section 74.351 of the Texas Civil Practice and Remedies plaintiffs' claims, but must instead explain the Code, Hillery and Southwest (collectively, “Hillery”) moved basis of his statements to link his conclusions to to dismiss under section 74.351, contending the report the facts. V.T.C.A., Civil Practice & Remedies is inadequate. See TEX. CIV. PRAC. & REM.CODE § Code § 74.351(r)(6). 74.351(a) (West 2011). The trial court denied the motion to dismiss, and, on appeal, Hillery contends the trial court erred Cases that cite this headnote because Dr. Goldman, the Kyles' expert, is not qualified and because the report is inadequate concerning causation. We [12] Health affirm. Affidavits of merit or meritorious defense; expert affidavits In explaining causation to support health care Background liability claim, the expert report must explain how the physician's conduct caused the plaintiff's On September 15, 2008, Melinda Kyle was admitted to injuries. V.T.C.A., Civil Practice & Remedies Oak Bend Medical Center with a gangrenous right toe. Code § 74.351(r)(6). Melinda was sixty-nine years old with a history of diabetes, hypertension, coronary artery disease, and peripheral vascular Cases that cite this headnote disease. She also took blood-thinning medication to prevent clotting.

Melinda's attending doctor was Dr. Mark Murray. Shortly Attorneys and Law Firms after being admitted, Melinda had a stent placed in her leg to try to restore blood flow to her foot. She also saw *484 Divya Reddy Chundru, Harris, Hilburn & Sherer, a cardiologist, Dr. James McClamroch, on September 17. Houston, TX, for Appellants. The procedure did not restore blood flow to Melinda's foot, and, on September 22, 2008, Dr. Uttam Tripathy, a vascular Monica C. Vaughan, Houssiere, Durant & Houssiere, L.L.P., surgeon performed a bypass graft. Although it is unclear Houston, TX, for Appellees. when, at some point, Melinda was placed on a Heparin drip to prevent clotting. Dr. Tripathy ordered that the Heparin drip be

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Hillery v. Kyle, 371 S.W.3d 482 (2012)

discontinued one hour before surgery and resumed four hours after surgery. Standard of Review

The bypass graft was not successful. Accordingly, Hillery, a [1] [2] We review a trial court's ruling on a motion to general surgeon, was consulted. He performed a below knee dismiss a health care liability lawsuit pursuant to Chapter amputation on Melinda's right leg on September 24, 2008. 74 of the Texas Civil Practice and Remedies Code under Hillery ordered the Heparin drip discontinued before surgery. an abuse of discretion standard. See Am. Transitional Care After the surgery was completed, the Heparin drip was not Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) resumed. (reviewing dismissal under predecessor statute, section 13(e) of article 4590i); Runcie v. Foley, 274 S.W.3d 232, 233 Melinda was monitored in the intensive care unit after the (Tex.App.-Houston [1st Dist.] 2008, no pet.). A trial court amputation. On September 25, while Melinda was still in the abuses its discretion if it acts in an arbitrary or unreasonable ICU, testing by Dr. McClamroch and Dr. Tripathy showed manner without reference to guiding rules or principles, inadequate anti-coagulation. On September 26, Melinda or if it clearly fails to analyze or apply the law correctly. was extubated. A test performed that day again showed Runcie, 274 S.W.3d at 232. In reviewing whether an expert inadequate anti-coagulation. On September 29, 2008, despite report complies with Chapter 74, we evaluate whether the a still inadequate level of anti-coagulation, Dr. McClamroch report “represents a good-faith effort” to comply with the approved Melinda's transfer out of ICU. Dr. Tripathy also statute. Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d examined Melinda and ordered her transfer. Dr. Murray also 216, 221 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). In ordered Melinda's transfer. Approximately one hour after her making this evaluation, we must look only at the information transfer, a nurse found Melinda lethargic and unresponsive. contained within the four corners of the report. Bowie Mem'l Melinda was resuscitated and reintubated. However, she had Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002). suffered anoxic encephalopathy—brain damage caused by lack of oxygen.

Melinda was transferred back to the ICU. At that time, Qualifications she was placed back on the Heparin drip. Dr. McClamroch [3] In his first issue, Hillery contends that the trial court ordered a test that showed myocardial infarction was not the abused its discretion in not dismissing the Kyles' claim cause of Melinda's respiratory arrest. Further testing indicated because Dr. Goldman is not qualified to offer an opinion that there was no significant blood *486 flow to the brain. concerning the standard of care in this claim. Melinda was declared brain dead. She was extubated on October 6, 2008. Melinda was transferred for hospice care Section 74.351(r)(5)(A) requires that an expert opining on where she remained until she died on October 12, 2008. “whether a physician departed from accepted standards of medical care” meet the qualifications set forth in section The Kyles brought this health care liability claim against 74.401. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r) Dr. Tripathy, Dr. Murray, Dr. McClamroch, Hillery, and (5)(A) (West 2011). Section 74.401(a) provides: the professional associations with which each doctor was associated. As required by statute, the Kyles filed an expert (a) In a suit involving a health care liability claim against a report by Dr. Stephen Goldman. Hillery moved to dismiss the physician for injury to or death of a patient, a person may Kyles' suit against him, objecting to the report on the ground qualify as an expert witness on the issue of whether the that Dr. Goldman, who is a cardiologist, is not qualified to physician departed from accepted standards of medical opine on the standard of care applicable to Hillery, a general care only if the person is a physician who: surgeon. Hillery also objected that Dr. Goldman's opinion is conclusory because it does not link the facts of the case to his (1) is practicing medicine at the time such testimony is conclusion that Hillery's breach of the standard of care caused given or was practicing medicine at the time the claim Melinda's death. The trial court denied the motion to dismiss arose; and Hillery appealed. (2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Hillery v. Kyle, 371 S.W.3d 482 (2012)

at 558 (noting focus is not on defendant doctor's area of (3) is qualified on the basis of training or experience expertise, but on the condition involved in the claim). The to offer an expert opinion regarding those accepted mere fact that Dr. Goldman is not a general surgeon, therefore, standards of medical care. does not necessarily render him unqualified. TEX. CIV. PRAC. & REM.CODE ANN. § 74.401(a) (West In his report, Dr. Goldman states that he is familiar with the 2011). Section 74.401 continues: standards of care relevant to the condition involved in this *487 (c) In determining whether a witness is qualified claim. Specifically, Dr. Goldman states that, as part of his on the basis of training or experience, the court shall practice, he treats, and has diagnosed and treated, “patients consider whether, at the time the claim arose or at the with conditions similar to those experienced by Melinda time the testimony is given, the witness: Kyle including coronary artery disease, hypertension, hyperlipidemia, diabetes, and peripheral vascular disease.” (1) is board certified or has other substantial training or He also states that experience in an area of medical practice relevant to the claim; and [T]here is considerable overlap in my specialty and that of physicians caring (2) is actively practicing medicine in rendering medical for patients in a critical care setting care services relevant to the claim. including pulmonology, vascular disease and internal medicine. My area TEX. CIV. PRAC. & REM.CODE ANN. § 74.401(c). of specialties overlaps the physicians involved in the care of Melinda The first requirement set forth in section 74.401(a) is that Dr. Kyle in the diagnosis, treatment Goldman “is practicing medicine at the time such testimony and management of patients with is given or was practicing medicine at the time the claim stents.... By virtue of my education, arose.” TEX. CIV. PRAC. & REM.CODE ANN. § 74.401(a) training and experience, I am well (1). Hillery does not challenge this requirement. familiar with the standards of care applicable to the diagnosis and The second and third requirements of section 74.401(a) are treatment of patients like Melinda that Dr. Goldman have “knowledge of accepted standards Kyle with a history of coronary artery of medical care for the diagnosis, care, or treatment of the disease, hypertension, hyperlipidemia, illness, injury, or condition involved in the claim” and be diabetes and peripheral vascular “qualified on the basis of training or experience to offer an disease who have undergone surgery. expert opinion regarding those accepted standards of medical care.” Id. § 74.401(a)(2), (3). These are the requirements Dr. Goldman also explains the basics of the cardiovascular Hillery contends Dr. Goldman fails to meet. system and how blood clots in the legs may develop. The risk of *488 clots is “significantly increased in patients who have Specifically, Hillery argues that Dr. Goldman is not qualified suffered a trauma in the lower extremities such as would occur because he is a cardiologist who is board certified in during a surgical procedure.” He further elaborates, cardiovascular disease and internal medicine, but nothing in his report or curriculum vitae shows that he is qualified The risk of pulmonary embolism and to opine on the area of general surgery or below-knee thrombotic complications following amputation, the medical care provided by Hillery in this case. surgery or immobilization has been An expert need not be practicing in the same field as a well-known for decades. It is well defendant in a health care liability claim in order to qualify as established that patients who are an expert. Rittger v. Danos, 332 S.W.3d 550, 558 (Tex.App.- unable to move well, who are Houston [1st Dist.] 2009, no pet.); Blan v. Ali, 7 S.W.3d obese or bedridden, and therefore 741, 745 (Tex.App.-Houston [14th Dist.] 1999, no pet.). have markedly decreased movement Rather the statute requires that the expert have knowledge in their legs and bodies, should of the condition involved in the claim. TEX. CIV. PRAC. be given some type of thrombo- & REM.CODE ANN. § 74.401(a)(2); Rittger, 332 S.W.3d embolism prophylaxis. .... It has been

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Hillery v. Kyle, 371 S.W.3d 482 (2012)

well established that administration of anticoagulant medications like Because Dr. Goldman's report and curriculum vitae Heparin can prevent clots from demonstrate his knowledge and experience treating patients forming thereby preventing the in circumstances similar to those that form the basis development of pulmonary emboli. of the allegations in this claim, the trial court did not abuse its discretion in finding Dr. Goldman qualified. See Within the section of his report dealing with Hillery's alleged TEX. CIV. PRAC. & REM.CODE ANN. § 74.401(a)(2); breach of the standard of care, Dr. Goldman also states, Rittger, 332 S.W.3d at 558 (neurologist qualified to provide expert opinion on standard of care or breach thereof by The standard of care required Robert emergency room physician where prospective medical expert Hillery, M.D., the general surgeon had practical knowledge of what is usually and customarily attending to Ms. Kyle, to ensure done by practitioners under similar circumstances); see also that proper anticoagulation occurred Barber v. Mercer, 303 S.W.3d 786, 795 (Tex.App.-Fort following surgery. The standard of Worth 2009, no pet.) (holding anesthesiologist qualified to care required Dr. Hillery to order opine on conduct of surgeon in health care liability claim administration of Heparin for Mrs. because anesthesiologist's report tied his education, training, Kyle to prevent the formation of and experience to *489 the specific alleged breach—the pulmonary embolism and thrombotic positioning and padding of a patient during surgery, not the complications. This standard applies conduct of the actual operating techniques); Blan, 7 S.W.3d to all of the healthcare providers at 746 (condition involved in claim was stroke, therefore, involved in the care of Mrs. Kyle neurologist qualified as expert although defendants were as the need for administration [of] emergency room physician and cardiologist). Heparin to anti-coagulate a patient following surgery involving the hip, leg or lower extremities is well known Adequacy of Report among physicians practicing surgery, cardiology and internal medicine. In his second issue, Hillery contends that Dr. Goldman “fails to adequately set forth the standard of care, breach of the Furthermore, as stated above, the statute setting forth the standard of care, and the causal relationship between the qualifications required of an expert does not focus on the breach and injury” as required by section 74.351 of the Texas defendant's specialty but on the condition involved in the Civil Practice and Remedies Code. See TEX. CIV. PRAC. & claim. See TEX. CIV. PRAC. & REM.CODE ANN. § REM.CODE ANN. § 74.351(a). 74.401(a)(2); Rittger, 332 S.W.3d at 558. Hillery asserts that he was “consulted solely regarding amputation” and not to provide any other care. However, in this case, Hillery's A. Chapter 74 expert report requirements conduct related to the amputation or general surgery is not the Pursuant to section 74.351, medical-malpractice plaintiffs basis of the Kyles' claim. Rather, the basis of the claim and the must provide each defendant physician and health care focus of Dr. Goldman's report is the failure to properly anti- provider with an expert report. TEX. CIV. PRAC. & coagulate Melinda following the surgery. The Kyles alleged REM.CODE § 74.351(a). If a claimant timely furnishes an that Hillery and the other defendants were negligent by failing expert report, a defendant may file a motion challenging the to “properly diagnose and prescribe necessary medications report's adequacy. Id. The trial court shall grant the motion to Melinda Kyle,” “anticoagulate Melinda Kyle,” “properly only if it appears, after hearing, that the report does not recognize and diagnose the condition of Melinda Kyle, represent an objective good faith effort to comply with the deceased, including, but not limited to hypercoaguable state,” statutory definition of an expert report. See id. § 74.351(l ). and “properly and timely treat Melinda Kyle.” Hillery does The statute defines an expert report as a written report by an not assert that Dr. Goldman, who is board-certified in expert that provides, as to each defendant, a fair summary of cardiovascular diseases and internal medicine, is not qualified the expert's opinions, as of the date of the report, regarding: to offer an opinion on the standard of care relating to the need (1) the applicable standards of care; (2) the manner in which to administer anti-coagulation medication following surgery. the care rendered failed to meet the standards; and (3) the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Hillery v. Kyle, 371 S.W.3d 482 (2012)

causal relationship between that failure and the injury, harm, not mention the elements of standard of care or breach, we do or damages claimed. See id. § 74.351(r)(6); Gray v. CHCA not address that portion of Hillery's issue concerning standard Bayshore, L.P., 189 S.W.3d 855, 858–59 (Tex.App.-Houston of care and breach. See TEX.R.APP. P. 33.1(a); Hawkins [1st Dist.] 2006, no pet.). v. Herrera, 296 S.W.3d 366, 370 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (refusing to address objections by [4] [5] [6] [7] [8] Although the report need not defendant physician who did not raise objections in trial marshal all the plaintiff's proof, it must include the expert's court); see also Plemons v. Harris, No. 02–08–00326–CV, opinions on the three statutory elements—standard of care, 2009 WL 51290, *3 (Tex.App.-Fort Worth Jan. 8, 2009, no breach, and causation. See Palacios, 46 S.W.3d at 878; Gray, pet.) (mem. op.) (holding objection to expert report made in 189 S.W.3d at 859. In detailing these elements, the report trial court must comport with complaint asserted on appeal); must provide enough information to fulfill two purposes: Williams v. Mora, 264 S.W.3d 888, 891(Tex.App.-Waco first, it must inform the defendant of the specific conduct 2008, no pet.) (holding that when defendant's only timely the plaintiff has called into question, and, second, it must filed objections to expert report were that two statements were provide a basis for the trial court to conclude that the claims speculative, defendant waived all other objections). have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.2011) (citing Palacios, 46 S.W.3d at 879). A report that merely states the expert's conclusions as to the standard C. Adequacy of report concerning causation of care, breach, and causation does not fulfill these two [10] [11] [12] As set forth above, Hillery's objection to purposes. Id. “ ‘[T]he expert must explain the basis of his the adequacy of Dr. Goldman's report is that “Dr. Goldman statements to link his conclusions to the facts.’ ” Wright, fails to provide any factual support for his conclusion that 79 S.W.3d at 52 (quoting Earle v. Ratliff, 998 S.W.2d Mrs. Kyle developed blood clots and pulmonary emboli that 882, 890 (Tex.1999)). Furthermore, in assessing the report's were the cause of her respiratory arrest as a result of failure sufficiency, the trial court may not draw any inferences, and [t]o provide appropriate post operative drugs.” An expert instead must rely exclusively on the information contained report must include a fair summary of the causal relationship within the report's four corners. See Scoresby, 346 S.W.3d at between the defendant's failure to meet the appropriate 556 (citing Palacios, 46 S.W.3d at 878); Wright, 79 S.W.3d standard of care and the injury, harm, or damages claimed. at 53. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6). An expert cannot merely state his conclusions or “provide insight” about the plaintiffs' claims, but must instead “explain B. Hillery's objection the basis of his statements to link his conclusions to the [9] Hillery's objection to Dr. Goldman's report in the trial facts.” Wright, 79 S.W.3d at 52. In explaining causation, the court stated, in its entirety: report must explain how the physician's conduct caused the plaintiff's injuries. Id. at 53. Dr. Goldman's report is inadequate because it is conclusory and fails Dr. Goldman's report concerning causation is not conclusory. to provide any factual support As discussed above, Dr. Goldman explains the functioning for the opinion expressed within. of the cardiovascular system, including how decreased Dr. Goldman states that myocardial physical movement causes a patient to be more prone to infarction was ruled out as the cause clotting, and how formation of clots causes inadequate of Mrs. Kyle's arrest. However, Dr. oxygenation, respiratory arrest, and brain injury. He also Goldman fails to provide any factual describes and explains the risk factors for developing clots support for his conclusion that Mrs. and pulmonary emboli, many of which existed in Melinda's Kyle developed blood clots and *490 case, predisposing her to their development: pulmonary emboli that were the cause of her respiratory arrest as a result of Melinda Kyle had multiple risk failure [t]o provide appropriate post factors that predisposed her to operative drugs. the development of blood clots and pulmonary emboli. Ms. Kyle Because Hillery objected only on the grounds that the report was obese, had heart disease, was conclusory concerning the element of causation, and did peripheral vascular disease and was

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Hillery v. Kyle, 371 S.W.3d 482 (2012)

immobile. Ms. Kyle had also just risk factors that placed her at an undergone a below knee amputation, even greater risk for the development a procedure that is in itself a risk of pulmonary emboli, administration factor for development of pulmonary of Heparin was essential to prevent emboli. Ms. Kyle should have been formation of blood clots. By failing to placed back upon Heparin following order the Heparin resumed and failing this surgery. In reasonable medical to ensure that Ms. Kyle was receiving probability, had the Heparin drop Heparin following her surgery, Dr. been resumed for Ms. Kyle following Hillery breached and violated the her amputation surgery, she would standard of care. In reasonable medical not have developed the blood clots probability, if Dr. Hillery had met and pulmonary emboli that were, the standard of care and ordered in all probability, the cause of her Heparin following surgery, Heparin respiratory arrest on September 29, would have been resumed in Ms. Kyle 2008. Ms. Kyle would not have and she would not have developed suffered the respiratory arrest on the pulmonary emboli that caused her September 29, 2008 if Heparin had respiratory arrest and anoxic brain been reinstituted and would not have injury and she would have survived her sustained the anoxic brain injury hospitalization. caused by her arrest. In the “Conclusion” section of the report, Dr. Goldman Concerning Hillery's conduct, Dr. Goldman states: summarizes:

The standard of care required Robert Ms. Kyle had several strong and Hillery, M.D., the general surgeon obvious risk factors for pulmonary attending to Ms. Kyle, to ensure emboli yet she was not placed back that *491 proper anticoagulation on Heparin following her below occurred following surgery. The knee amputation. This was below standard of care required Dr. Hillery the standard of care for all of the to order administration of Heparin for physicians attending to Ms. Kyle. The Ms. Kyle to prevent the formation of failure to resume Heparin following pulmonary embolism and thrombotic her surgery, in reasonable medical complications. This standard applies probability, caused the formation of to all of the health care providers blood clots that blocked the flow of involved in the care of Ms. Kyle as oxygen and caused her to suffer a the need for administration Heparin respiratory arrest on September 29, to anti-coagulate a patient following 2008. surgery involving the hip, leg or lower extremities is well known Dr. Goldman does more than just state his conclusions or among physicians practicing surgery, provide insight regarding the Kyle's claims. See Wright, 79 cardiology and internal medicine. Ms. S.W.3d at 52. He explains the medical causes of the formation Kyle was a patient with multiple of clots, including conditions that increase the risk, and that risk factors for the development of these risks are well-known. He identifies Melinda as having pulmonary emboli notably including several of these risk factors, including a trauma in the form surgery on the leg which is of a surgical amputation of her leg below the knee. He itself a risk factor sufficient to explains that treatment using a drug such as Heparin is well- warrant administration of Heparin established to help prevent clots from forming and that the prophylactically following surgery. standard of care required the defendants, including Hillery, For Ms. Kyle, a patient with multiple to administer Heparin following surgery. He explains that

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Hillery v. Kyle, 371 S.W.3d 482 (2012)

multitude of causes for respiratory arrest for a 5–day the test ordered by other defendants ruled out a myocardial postoperative patient.” To the extent this is an argument, infarction. And, finally, he opines that the likely cause of distinct from the one discussed above, that Dr. Goldman did Melinda's death was the development of blood clots and not rule out all possible causes of death, we overrule it. See pulmonary emboli and that she would not have developed the Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys. clots and pulmonary emboli had the Heparin been resumed v. Wallace, 278 S.W.3d 552, 562 (Tex.App.-Dallas 2009, no following the amputation surgery. We conclude that this is pet.) (“Nothing in section 74.351 suggests the preliminary a fair summary of the causal relationship between Hillery's report is required to rule out every possible cause of the failure to meet the appropriate standard of care and the injury, injury, harm, or damages claimed, especially given that harm, or damages claimed. See Manor Care Health Servs., section 74.351(s) limits discovery before a medical expert's Inc. v. Ragan, 187 S.W.3d 556, 564 (Tex.App.-Houston report is filed.”); see also Methodist Hosp. v. Shepherd– [14th Dist.] 2006, pet. granted, judgment vacated w.r.m.) Sherman, 296 S.W.3d 193, 199 n. 2 (Tex.App.-Houston [14th (concluding report adequate concerning causation where Dist.] 2009, no pet.) (whether expert's opinion is correct or report stated that administration of anticoagulant medication not is issue for summary judgment, not Chapter 74 motion was necessary to prevent pulmonary emboli and that as to dismiss); Manor Care Health Servs., Inc., 187 S.W.3d result of failure to administer drugs patient probably suffered at 564 (report stating failure to administer anticoagulant pulmonary emboli and consequently died); cf. *492 Shenoy drugs probably caused pulmonary emboli that caused death v. Jean, No. 01–10–01116–CV, 2011 WL 6938538, at *7 sufficient statement of causation). (Tex.App.-Houston [1st Dist.] Dec. 29, 2011, no pet. h.) (mem op.) (holding report inadequate concerning causation because it failed to link decedent's pre-existing conditions to an increased risk for the injury involved in that claim). Conclusion

In his appellate brief, Hillery also argues that Dr. Goldman's We affirm the order of the trial court. opinion is speculative because he “fails to offer any factual data, clinical, radiological and the like[,] to support his All Citations assumption that blood clots and pulmonary emboli formed which caused Ms. Kyle's respiratory arrest. There are a 371 S.W.3d 482

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

328 S.W.3d 526 West Headnotes (23) Supreme Court of Texas.

Michael T. JELINEK, M.D. and Columbia [1] Health Rio Grande Healthcare, L.P. d/b/a Rio Proximate Cause Grande Regional Hospital, Petitioners, At a trial concerning a medical malpractice v. claim, the plaintiff must establish two causal Francisco CASAS and Alfredo DeLeon, Jr., nexuses in order to be entitled to recovery: (1) as Personal Representatives of the Estate a causal nexus between the defendant's conduct of Eloisa Casas, Deceased, Respondents. and the event sued upon; and (2) a causal nexus between the event sued upon and the plaintiff's No. 08–1066. | Argued Feb. injuries. 18, 2010. | Decided Dec. 3, 2010. 6 Cases that cite this headnote Synopsis Background: Patient's surviving family members brought [2] Appeal and Error medical malpractice action against hospital and physician, Total failure of proof arising out of treatment of patient at hospital. Following In a legal sufficiency review, when the evidence non-suiting of physician, and following jury trial, the offered to prove a vital fact is so weak as to do 275th District Court, Hidalgo County, Juan R. Partida, J., no more than create a mere surmise or suspicion entered judgment for family members. Hospital and physician of its existence, the evidence is no more than a appealed. The Corpus Christi Court of Appeals, 2008 WL scintilla and, in legal effect, is no evidence. 2894889, affirmed. Hospital and physician petitioned for review. 30 Cases that cite this headnote

[3] Appeal and Error Holdings: The Supreme Court, Guzman, J., held that: Total failure of proof In a legal sufficiency review, when the [1] lay testimony of family members did not present circumstances are equally consistent with either some evidence in support of finding that hospital's alleged of two facts, neither fact may be inferred. negligence caused patient's additional pain and suffering; 2 Cases that cite this headnote [2] expert testimony did not present some evidence in support of finding that hospital's alleged negligence caused patient's [4] Appeal and Error additional pain and suffering; and On conflicting evidence [3] expert report was conclusory with regard to causation and, In a legal sufficiency review, when the evidence thus, was deficient. equally supports two alternatives, the Supreme Court must view each piece of circumstantial evidence, not in isolation, but in light of all the Reversed and rendered in part; reversed and remanded in part. known circumstances, and must consider not just favorable but all the circumstantial evidence, and Jefferson, C.J., dissented in part, and filed opinion in which competing inferences as well. Green and Lehrmann, JJ., joined. Cases that cite this headnote Lehrmann, J., filed opinion dissenting in part. [5] Health

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

Proximate cause 13 Cases that cite this headnote To meet the legal sufficiency standard in medical malpractice cases, plaintiffs are required to adduce evidence of a reasonable medical [9] Health probability, or reasonable probability, that their Proximate Cause injuries were caused by the negligence of one or Correlation does not necessarily imply more defendants, meaning simply that it is more causation, for purposes of a medical malpractice likely than not that the ultimate harm or condition action; evidence of an event followed closely resulted from such negligence. by manifestation of or treatment for conditions which did not appear before the event raises 18 Cases that cite this headnote suspicion that the event at issue caused the conditions, but suspicion has not been and is not [6] Health legally sufficient to support a finding of legal Diagnosis and treatment of cancer causation. Lay testimony of patient's surviving husband 4 Cases that cite this headnote and son regarding patient's discomfort while obtaining treatment for cancer in hospital did not present some evidence in support of finding that [10] Health hospital's alleged negligence caused patient's Gross or obvious negligence and matters of additional pain and suffering, in their medical common knowledge malpractice action against hospital; testimony Non-expert evidence alone is sufficient in a of husband and son raised no more than mere medical malpractice action to support a finding suspicion of causation, inasmuch as they were of causation in limited circumstances where both unable to assert whether it was cancer, surgery, the occurrence and conditions complained of are other infections, or lapse in medication that such that the general experience and common caused such discomfort. sense of laypersons are sufficient to evaluate the conditions and whether they were probably Cases that cite this headnote caused by the occurrence.

[7] Health 9 Cases that cite this headnote Proximate cause Health [11] Evidence Gross or obvious negligence and matters of Cause and effect common knowledge Evidence Lay testimony may be used as evidence of Conflict with other evidence causation in certain circumstances in medical Health malpractice actions, but when expert testimony Infections and infectious diseases is required, lay evidence supporting liability is Expert testimony did not present some evidence legally insufficient. in support of finding that hospital's alleged 8 Cases that cite this headnote negligence through lapse in medication caused patient's additional pain and suffering, in medical malpractice action by patient's surviving [8] Health family members against hospital; competing Proximate cause explanations existed for presence of negligence- A general rule in medical malpractice actions is induced infection, and expert did not explain that expert testimony is necessary to establish why presence of such infection was medically causation as to medical conditions outside the more probable than competing explanations. common knowledge and experience of jurors.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

Degree of proof 3 Cases that cite this headnote Verdicts in a medical malpractice action must rest upon reasonable certainty of proof. [12] Evidence Medical testimony 1 Cases that cite this headnote

Trial Expert and other opinion evidence [16] Appeal and Error If no basis for the expert opinion in a medical Sufficiency of Evidence in Support malpractice action is offered, or the basis offered Trial provides no support, the opinion is merely a Credibility of Witnesses conclusory statement and cannot be considered Courts should not usurp the jury's role as probative evidence, regardless of whether there fact finder, nor should they question the jury's is no objection; a claim will not stand or fall on right to believe one witness over another; but the mere ipse dixit of a credentialed witness. when reviewing a verdict for sufficiency of the evidence, courts need not, indeed, must not, defer 10 Cases that cite this headnote to the jury's findings when those findings are not supported by credible evidence. [13] Evidence Medical testimony Cases that cite this headnote When the only evidence of a vital fact is circumstantial, an expert witness in a medical [17] Appeal and Error malpractice action cannot merely draw possible Total failure of proof inferences from the evidence and state that “in When the evidence compels the jury to guess medical probability” the injury was caused by if a vital fact exists, a reviewing court does not the defendant's negligence; rather, the expert undermine the jury's role by sustaining a no- must explain why the inferences drawn are evidence challenge. medically preferable to competing inferences that are equally consistent with the known facts, 22 Cases that cite this headnote and thus, when the facts support several possible conclusions, only some of which establish that [18] Costs the defendant's negligence caused the plaintiff's Nature and Grounds of Right injury, the expert must explain to the fact Health finder why those conclusions are superior based Affidavits of merit or meritorious defense; on verifiable medical evidence, not simply the expert affidavits expert's opinion. Expert report was conclusory with regard to 26 Cases that cite this headnote causation, and thus, was deficient, in medical malpractice action by patient's surviving family [14] Health members against physician arising out of Proximate cause treatment of patient, so as to entitle physician to award of attorney fees and costs in action; The proof in a medical malpractice action must report offered no more than bare assertion that establish causal connection beyond the point of physician's alleged breach resulted in increased conjecture; it must show more than a possibility. pain and suffering as well as prolonged hospital Cases that cite this headnote stay, but did not offer explanation of how breach caused injury. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(e) (Repealed). [15] Health

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

10 Cases that cite this headnote 39 Cases that cite this headnote

[19] Health [22] Appeal and Error Affidavits of merit or meritorious defense; Rulings on Motions Relating to Pleadings expert affidavits The Supreme Court reviews the trial court's grant If a plaintiff in a medical malpractice action or denial of a motion for sanctions and dismissal timely files an expert report and the defendant of a medical malpractice action on the ground moves to dismiss because of the report's of a deficient expert report under the abuse-of- inadequacy, the trial court must grant the motion discretion standard. Vernon's Ann.Texas Civ.St. only if it appears to the court, after a hearing, that art. 4590i, § 13.01(e) (Repealed). the report does not represent a good faith effort to comply with the definition of an expert report 5 Cases that cite this headnote in the governing statute. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l ), (r)(6) (Repealed). [23] Appeal and Error Abuse of discretion 20 Cases that cite this headnote A district court abuses its discretion if it acts in an arbitrary or unreasonable manner without [20] Health reference to any guiding rules or principles. Affidavits of merit or meritorious defense; expert affidavits 30 Cases that cite this headnote All information needed for an inquiry into whether a good-faith effort was made to comply with expert report requirements in the governing statute is found within the four corners of the Attorneys and Law Firms expert report, which need not marshal all the *529 Ronald G. Hole, Ida Cecilia Garza, Hole & Alvarez, plaintiff's proof, but must include the expert's L.L.P., McAllen, for Michael T. Jelinek, M.D. opinion on each of the three main elements: standard of care, breach, and causation. Vernon's John N. Mastin, San Antonio, Francisco J. Rodriguez, Ann.Texas Civ.St. art. 4590i, § 13.01(l ), (r)(6) Rodriguez Tovar & Lopez, LLP, McAllen, for Francisco (Repealed). Casas. 19 Cases that cite this headnote Mike A. Hatchell, Sarah B. Duncan, Elissa Gail Underwood, Locke Lord Bissell & Liddell, LLP, Austin, Raul Javier [21] Health Guerra, Green, DuBois & Guerra, San Antonio, Susan A. Affidavits of merit or meritorious defense; Kidwell, Locke Lord Bissell & Liddell, LLP, Austin, for expert affidavits Columbia Rio Grande Healthcare, L.P. An expert report in a medical malpractice action Opinion cannot merely state the expert's conclusions about the elements of standard of care, breach, Justice GUZMAN delivered the opinion of the Court, in and causation, but must explain the basis of the which Justice HECHT, Justice WAINWRIGHT, Justice statements to link the conclusions to the facts; a MEDINA, Justice JOHNSON, and Justice WILLETT joined, report that merely states the expert's conclusions and in which Chief Justice JEFFERSON, Justice GREEN, about the elements does not fulfill the purposes and Justice LEHRMANN joined as to Parts I and II.A. of a good-faith effort in complying with the expert report requirements in the governing When circumstantial evidence is consistent with several statute. Vernon's Ann.Texas Civ.St. art. 4590i, § possible medical conclusions, only one of which establishes 13.01(l ), (r)(6) (Repealed). that the defendant's negligence caused the plaintiff's injury,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

an expert witness must explain why, based on the particular she also had a fever and a mildly elevated white-blood- facts of the case, that conclusion is medically superior to cell count, potentially indicating an infection. To treat this the others. If the expert fails to give any reason beyond possible infection, her surgeon and primary physician, Dr. an unsupported opinion, the expert's testimony is legally Carlos Garcia–Cantu, consulted with an infectious disease insufficient evidence of causation. In this case, we determine specialist at the Hospital, Dr. Michael Jelinek, who on July whether legally sufficient evidence supports the jury's verdict 11 prescribed two medications, Maxipime (a broad-spectrum in favor of the estate of Eloisa Casas 1 against Rio Grande antibiotic), and Flagyl (an antibiotic used to treat anaerobic bacteria). Regional Hospital (the Hospital). 2 Following her admission to the Hospital with abdominal pain, doctors placed Casas on The Hospital performed several diagnostic tests, which antibiotics used to treat and prevent certain intra-abdominal revealed abnormal collections of fluid in Casas's abdomen. infections. Two days later she underwent major abdominal On July 13, she underwent major abdominal surgery during surgery and continued on the antibiotics for another five which Dr. Garcia–Cantu discovered that “fairly extensive” days, but the Hospital allowed the prescriptions to lapse for metastatic cancer had perforated Casas's colon and allowed four-and-a-half days. The Hospital admits it should have material to leak into her abdominal cavity, causing an intra- continued the antibiotics but denies that the lapse caused abdominal abscess. Dr. Garcia–Cantu drained the abscess, Casas any additional pain. We hold that the Casases failed repaired Casas's colon, and inserted a Jackson–Pratt drain to to present legally sufficient evidence that Casas suffered prevent further problems. Following the surgery, Dr. Garcia– from an infection the omitted antibiotics would have treated. Cantu continued the Maxipime and Flagyl prescriptions, and Accordingly, we reverse the court of appeals' judgment and a culture of the removed abscess revealed an E. coli infection, render judgment that the Casases take nothing. 3 which is effectively treated with Maxipime. Casas received Maxipime and Flagyl for another five days, but hospital 1 Francisco Casas and Alfredo DeLeon Jr., Casas's staff inadvertently failed to place a prescription renewal form husband and son, respectively, serve as personal on Casas's chart, resulting in a four-and-a-half-day period representatives of her estate. We refer to them between July 18 and 23 during which Casas did not receive collectively as “the Casases.” either medication. Even so, Casas never tested positive for E. 2 coli again and a culture of the incision site on July 18 instead Columbia Rio Grande Regional Healthcare, L.P., d/b/a/ Rio Grande Regional Hospital. grew Candida (a fungus) for which Diflucan (an antifungal) was prescribed. Then, on July 21, a second culture from 3 Because we conclude legally insufficient evidence a blood sample grew coagulase-negative staph, for which supports the jury's verdict, we do not reach the Hospital's Vancomycin was prescribed. 4 Neither Maxipime nor Flagyl second issue—whether the Hospital preserved error would have treated the Candida or coagulase-negative staph regarding its proposed unavoidable accident instruction. infection. In a separate petition, Dr. Michael Jelinek, one of Casas's treating physicians sued by the Casases, argues that the 4 There was a several-day lag between taking the culture trial court should have granted his motion for sanctions and and ordering the prescription, presumably to allow the dismissal because the Casases' expert report was deficient. culture to grow and to transmit the results to the treating We agree and hold that an award of attorney's fees is proper. physicians. Thus, the Diflucan was prescribed on July 21 Therefore, we reverse and remand to the trial court for an and the Vancomycin on July 23. award of attorney's fees and costs. On July 23, Dr. Garcia–Cantu noted an abscess in the wound, which he drained by removing the staples and opening the wound. The next day, records indicate that a foul smell was *530 I. Background emanating from the wound site, and hospital staff brought fans into the room to dissipate the odor. When Dr. Jelinek In 2000, Eloisa Casas was diagnosed with colon cancer learned of the lapsed prescription on July 23, he informed and underwent surgery, radiation, and chemotherapy. A year Casas and then prescribed different antibiotics, Levaquin later, doctors told her that the cancer appeared to be in and Vancomycin. On July 25, after a CAT scan showed no remission, and she thought she was cured. But on July 10, abscess, Dr. Garcia–Cantu removed the drain. Casas left the 2001, she was admitted to the Hospital with abdominal pains;

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

Hospital on August 23, but she returned in early September “there was no objective evidence present to demonstrate that and died two months later. intra-abdominal infection.” When reviewing the patient notes for July 24, which noted the presence of a foul smell, he In May 2003, several members of Casas's family, including suggested that the smell was consistent with an anaerobic her husband and son, filed suit against the Hospital, infection that would be difficult to culture because anaerobic Dr. Garcia–Cantu, and Dr. Jelinek. The plaintiffs claimed bacteria die when exposed to air. Dr. Carl Berkowitz, the that the defendants' negligence caused Eloisa Casas to Hospital's expert, offered several other explanations for the “suffer grievous embarrassment and humiliation, as well smell, such as the Candida infection or dying tissue. as excruciating pain the remainder of her life which she would not have suffered to such degree or extent if properly The Casases also called Casas's relatives to testify about her diagnosed, treated and cared for.” The plaintiffs sought to condition. Consistent with Dr. Daller's testimony, Casas's son recover damages for Casas's injuries and mental anguish. linked the smell with the opening of the wound to drain the They twice amended their petition, ultimately leaving the abscess: “The odor that I noticed was after they had taken out Casases as the sole plaintiffs. the staples on her incision, and one day that I went to see her as soon as they opened the door the whiff of this putrid smell *531 As required by former article 4590i § 13.01 of just engulfed me.” He also testified that Casas was upset upon the Medical Liability and Insurance Improvement Act, see learning that she had not received the antibiotics but was even TEX.REV.CIV. STAT. art. 4590i § 13.01, 5 the Casases filed more upset when the incision had to be opened and drained: an expert report within 180 days of filing the original petition. “Well, after she was told and I was told that she wasn't getting In the report, Dr. John Daller opined that Dr. Garcia–Cantu antibiotics, like I said, she was upset. What really upset her and Dr. Jelinek were negligent in failing to discover that the more was when they had to—they had to take out the staples antibiotics were not being given to Casas and that within out of her incision, and they had to open her incision up “reasonable medical probability” this negligence resulted in a again.” Casas's husband testified that, while she was upset prolonged hospital stay and increased pain and suffering. Dr. and did not trust the nurses or doctors after learning of the Jelinek later filed a motion for sanctions and dismissal under lapsed prescription, “she was still fighting. She ... wanted to article 4590i § 13.01(e), alleging that the expert report was beat this cancer she had.” The son testified that Casas did deficient because, among other things, it failed to explain any not lose hope until she witnessed the events of September 11, causal connection between the negligence and the purported 2001, following her re-admission to the Hospital: “That's why injury. The trial court denied the motion. Before trial began, I remember that day so vividly in my mind because that was however, the Casases nonsuited Dr. Jelinek and Dr. Garcia– the turning point in my mom. She seemed to just give up, not Cantu. fight, not want to fight anymore like she used to. And that was a very, very sad day.” 5 See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, *532 The jury found that the negligence of the Hospital, Dr. 1995 Tex. Gen. Laws 985, 986, amending the Medical Jelinek, and Dr. Garcia–Cantu proximately caused Casas's Liability and Insurance Improvement Act of Texas, Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. injury. The jury apportioned ninety percent of the negligence Gen. Laws 2039, 2041, repealed by Act of June 2, 2003, to the Hospital, five percent to Dr. Jelinek, and five percent 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws to Dr. Garcia–Cantu. It awarded $250,000 in damages to the 847, 884. Former article 4590i § 13.01 was replaced by Casases as compensation for Casas's pain and mental anguish. Texas Civil Practice and Remedies Code § 74.351, as amended. The Hospital appealed, arguing that the evidence was legally At trial, Dr. Daller testified as the Casases' medical expert. and factually insufficient to prove causation or damages for During direct examination, he analyzed the Hospital's daily mental anguish. Dr. Jelinek also appealed, challenging the patient notes regarding Casas and identified the significant trial court's denial of his motion for sanctions and dismissal. events. He noted changes in Casas's vital signs on July The court of appeals affirmed on all issues. ––– S.W.3d ––––. 21 and 22, such as increased heart rate and temperature, inflammation, and tenderness of the surgery site. Dr. Daller stated that “in medical probability” there was an infection II. Analysis in the abdomen, but on cross-examination he admitted that

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

We address in turn the two issues raised in this appeal: the be inferred.’ ” City of Keller, 168 S.W.3d at 813 (quoting legal sufficiency of the causation evidence and the sufficiency Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 of the Casases' expert report. S.W.2d 801, 805 (Tex.1991)). When considering such cases, “we must ‘view each piece of circumstantial evidence, not in isolation, but in light of all the known circumstances,’ ” A. Sufficiency of the Evidence id. at 813–14 (quoting Lozano v. Lozano, 52 S.W.3d 141, [1] The facts of this case are unfortunate: a woman with 167 (Tex.2001) (per curiam)), and we “must consider not just advanced colon cancer underwent surgery to repair her favorable but all the circumstantial evidence, and competing cancer-perforated and infected colon, and in the course of inferences as well.” Id. at 814. treatment for her many symptoms the Hospital failed to renew her antibiotic prescriptions for a four-and-a-half-day [5] To meet the legal sufficiency standard in medical period. The Hospital admits it should have continued the malpractice cases “plaintiffs are required to adduce evidence antibiotics. Even so, the plaintiff bears the burden to prove of a *533 ‘reasonable medical probability’ or ‘reasonable that the negligence caused an injury: “[A]t trial the plaintiff probability’ that their injuries were caused by the negligence must establish two causal nexuses in order to be entitled to of one or more defendants, meaning simply that it is ‘more recovery: (a) a causal nexus between the defendant's conduct likely than not’ that the ultimate harm or condition resulted and the event sued upon; and (b) a causal nexus between from such negligence.” Kramer v. Lewisville Mem'l Hosp., the event sued upon and the plaintiff's injuries.” Morgan v. 858 S.W.2d 397, 399–400 (Tex.1993) (citations omitted). Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984). Only Thus, we examine the record to determine if the Casases the second nexus is at issue here. presented legally sufficient evidence that “in reasonable medical probability” the Hospital's negligence caused Casas [2] [3] [4] In City of Keller v. Wilson, we considered additional pain and suffering. at length the parameters of legal sufficiency review, quoting with approval Chief Justice Calvert's seminal article on the When distilled to its essence, the Casases' claim is predicated topic: on the presence of an infection—treatable by the lapsed antibiotics—that caused Casas pain and mental anguish above “No evidence” points must, and and beyond that caused by the cancer, the surgery, and the may only, be sustained when the other known infections. The absence of an infection treatable record discloses one of the following by Maxipime and Flagyl would undermine the Casases' situations: (a) a complete absence claim, for then the prescription lapse would amount to an of evidence of a vital fact; (b) the unfortunate, but harmless, occurrence. The Hospital argues court is barred by rules of law or of that the Casases presented no evidence that the Hospital's evidence from giving weight to the negligence caused such an infection. The Casases' expert only evidence offered to prove a vital admitted there is no direct evidence of an anaerobic infection, fact; (c) the evidence offered to prove leaving the jury to consider the circumstantial evidence and a vital fact is no more than a mere make proper inferences from it. In reviewing the record, scintilla; (d) the evidence establishes we initially decide if jurors can determine causation under conclusively the opposite of the vital these facts unaided by expert testimony—that is, whether lay fact. testimony regarding causation is legally sufficient. 168 S.W.3d 802, 810 (Tex.2005) (quoting Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L.REV. 361, 362–63 (1960)). “When the evidence 1. Lay Testimony of Causation offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the [6] [7] [8] [9] Lay testimony may be used as evidence evidence is no more than a scintilla and, in legal effect, is of causation in certain circumstances, but “[w]hen expert no evidence.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, testimony is required, lay evidence supporting liability is 63 (Tex.1983). The same is true when the evidence equally legally insufficient.” City of Keller, 168 S.W.3d at 812. supports two alternatives: “ ‘When the circumstances are In medical malpractice cases, expert testimony regarding equally consistent with either of two facts, neither fact may causation is the norm: “The general rule has long been

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

that expert testimony is necessary to establish causation as of laypersons are sufficient to evaluate the conditions and to medical conditions outside the common knowledge and whether they were probably caused by the occurrence.” Id. at experience of jurors.” Guevara v. Ferrer, 247 S.W.3d 662, 668. 665 (Tex.2007); see also Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949) (“It is definitely settled with The present case does not fall within this rule. Unlike us that a patient has no cause of action against his doctor in Morgan, an otherwise healthy person did not suddenly for malpractice, either in diagnosis or recognized treatment, experience health difficulties following the defendant's unless he proves by a doctor of the same school of practice as negligent conduct when the plaintiff's symptoms were the defendant: (1) that the diagnosis or treatment complained reasonably attributable to the negligence and to nothing of was such as to constitute negligence and (2) that it else. Rather, a patient with terminal colon cancer did not was a proximate cause of the patient's injuries.”). We have receive antibiotics for four-and-a-half days following major allowed lay evidence to establish causation “in those cases abdominal surgery and after having received the medications in which general experience and common sense will enable a for eight days. There is no direct evidence that she suffered layman to determine, with reasonable probability, the causal from an infection treatable by the omitted antibiotics, but relationship between the event and the condition.” Morgan, there is evidence that she had two other infections that 675 S.W.2d at 733 (citing Lenger v. Physician's Gen. Hosp., accounted for all of her symptoms during that time. Given Inc., 455 S.W.2d 703, 706 (Tex.1970)). Care must be taken Casas's medical condition, expert testimony was crucial to to avoid the post hoc ergo propter hoc fallacy, that is, link the prescription lapse to an infection causing additional finding an earlier event caused a later event merely because it pain and suffering beyond what she would otherwise have occurred first. Stated simply, correlation does not necessarily experienced. See Kaster v. Woodson, 123 S.W.2d 981, 983 imply causation. As we noted in Guevara, “[e]vidence of (Tex.Civ.App.-Austin 1938, writ ref'd) (“What is an infection an event followed closely by manifestation of or treatment and from whence did it come are matters determinable only for conditions which did not appear before the event raises by medical experts.”); see also Hart v. Van Zandt, 399 S.W.2d suspicion that the event at issue caused the conditions. But 791, 792 (Tex.1966) (“In determining negligence in a case suspicion has not been and is not legally sufficient to support such as this, which concerns the highly specialized art of a finding of legal causation.” 247 S.W.3d at 668. treating disease, the court and jury must be dependent on expert testimony. There can be no other guide, and where [10] When lay testimony is credited as evidence of want of skill and attention is not thus shown by expert causation, it usually highlights a connection between two evidence applied to the facts, there is no evidence of it proper events that is apparent to a casual observer. In Morgan, for to be submitted to the jury.”). example, a previously healthy employee, upon exposure to leaking chemicals, suffered watering of the eyes, blurred The Casases point to testimony by Casas's husband and *534 vision, headaches, and swelling of the breathing son to support their argument that she deteriorated rapidly passages. 675 S.W.2d at 733. In such a circumstance, after discovering she did not receive the antibiotics. But lay testimony sufficed to connect the specific injury to this characterization overstates the evidence. While Casas's the negligence with no evidence of causation beyond the husband testified she was upset and did not trust her doctors leaking chemicals. Id. Likewise in Guevara, we stated following the discovery, she was still determined to fight that determining causation of “certain types of pain, her cancer. The son also observed Casas's anger and lack bone fractures, and similar basic conditions” following an of trust but testified that the opening of her wound, which automobile accident was within the competence of lay jurors. occurred the same day she learned of the lapse, upset her 247 S.W.3d at 668. But we held that expert testimony was even more. As Dr. Daller admitted, Candida likely caused the required to prove that a patient's medical expenses resulted abscess that required Dr. Garcia–Cantu to drain the wound. from the accident, noting that “[p]atients in hospitals are often Further, based on his experience at Casas's bedside, her son treated for more than one condition brought on by causes pinpointed the tragic events of September 11, 2001, and their independent of each other.” Id. at 669. These cases illustrate effect on his mother as the turning point in her mental state. this basic premise: “[N]on-expert evidence alone is sufficient The latter event was some seven weeks after discovery of the to support a finding of causation in limited circumstances lapsed prescriptions and after Casas's discharge from and re- where both the occurrence and conditions complained of admission to the Hospital. This evidence does not bear out the are such that the general experience and common sense

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

Casases' claim of a marked shift in Casas's mental resilience days she did not receive appropriate therapy. Had following the omission of the medications. she received the appropriate therapy then you would expect her length of stay to be shortened somewhat. *535 More importantly, Casas's husband and son were To quantitate that, I could not do that. .... unable to precisely identify the cause of her suffering. While A. Obviously, not receiving antibiotics is not going they could accurately describe her discomfort, they were to shorten your stay. Therefore, if it impacted the unable to say if it was the cancer, the surgery, the other stay it must have lengthened it. (emphases added). infections, or the lapse that caused it. Even testimony that Casas suffered after learning of the omission raises no more Q. Now, Candida, infection of a wound like this, they can than a mere suspicion of causation, and that is not enough, cause high temperatures. Correct? see Guevara, 247 S.W.3d at 668, particularly in light of the evidence that Casas thought she was cured of cancer A. Fungal infections can cause a high temperature, yes. before the surgery and then learned that not only was it “back with a vengeance,” it was terminal. The testimony of Casas's Q. It can cause increased heart rate? husband and son is evidence of her suffering, but not of its cause. Thus, we hold that the lay testimony presented by the A. That is correct. Casases is legally insufficient to establish that the Hospital's Q. And inflammation? negligence caused Casas additional pain and suffering. A. That is correct.

Q. Pain? 2. Expert Testimony A. That is correct. [11] The Casases also presented expert testimony regarding causation. The Casases' expert, Dr. Daller, testified that the Q. How about an abscess? Hospital's negligence “in medical probability” caused Casas additional pain and suffering. He based this opinion on the A. It caused or is part of the abscess in that wound presence of an intra-abdominal infection that could have that was present, that wound infection that needed to be been treated using Maxipime and Flagyl. Admitting that opened. no direct evidence indicated such an infection, Dr. Daller Q. So when Doctor Garcia went in on 7/23 ... and pointed to various circumstantial indicators that suggested an drained that wound at bedside that abscess was within a infection. These indicators were primarily Casas's changed reasonable degree of medical probability caused by the vital signs, such as fever and increased heart rate: “Well, Candida? given the fact that two to three days after the antibiotics had been mistakingly [sic] stopped her fever curve went up *536 A. That was one of the organisms that was there. and her heart rate went up, to me that suggests the presence It was the organism that was cultured. That is correct. of on going [sic] infection.” 6 But on cross-examination, he conceded these data were equally consistent with two other .... infections cultured from Casas's incision and blood—Candida Q. ... This coagulase negative staph causes fever? and coagulase—negative staph—neither of which is treatable by Maxipime or Flagyl: A. Correct.

6 When asked if the lapsed prescriptions affected Casas's Q. Increased heart rate? hospital stay, Dr. Daller equivocated: A. The fever will cause increased heart rate. A. I think that it certainly did impact it. However, I cannot quantitate that because there are multiple .... variables that are present in a clinical condition. Whether it lengthened her stay by one day, two Q. It can cause pain? days, three days, I cannot say that. What I would say from a scientific standpoint is that for four and a half A. Depending upon the site. Correct.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

and from other causes not the fault of the doctor. Such Q. Okay. All of these things can be caused by coagulase evidence has no tendency to show that negligence did cause negative staph and Candida, which we know were the injury.”). present 7/18 through 7/23, the time period she did not get antibiotics? By conceding that Casas's symptoms were consistent with infections not treatable by Maxipime or Flagyl, Dr. Daller A. That's correct. undermined his conclusion that an undetected infection was Q. Neither one would have been killed by Maxipime or also present. While it is possible that Casas did have such Flagyl? an infection, its presence can only be inferred from facts that are equally consistent with the Candida and coagulase- A. That's correct. negative staph infections. “ ‘When the circumstances are [12] [13] It is not enough for an expert simply to opine *537 equally consistent with either of two facts, neither that the defendant's negligence caused the plaintiff's injury. fact may be inferred.’ ” City of Keller, 168 S.W.3d at 813 The expert must also, to a reasonable degree of medical (quoting Tubelite, 819 S.W.2d at 805). Here, objective data probability, explain how and why the negligence caused the —the cultures—support the Candida and staph infections but injury. We have rejected expert opinions not grounded in not the supposed anaerobic infection. 7 a sound evidentiary basis: “[I]f no basis for the opinion is offered, or the basis offered provides no support, the 7 Admittedly, anaerobic bacteria are hard to culture opinion is merely a conclusory statement and cannot be because they are averse to oxygen. considered probative evidence, regardless of whether there is no objection. ‘[A] claim will not stand or fall on the [14] [15] Based on the record evidence, an anaerobic mere ipse dixit of a credentialed witness.’ ” City of San infection cannot be proved or disproved. It is equally Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009) (quoting plausible that Casas had such an infection or that she did Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999)); see not. Dr. Daller opined that she did, but he did not explain also Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 why that opinion was superior to the opposite view. Such (Tex.2009) ( “Conclusory or speculative opinion testimony evidence raises no more than a possibility of causation, which is not relevant evidence because it does not tend to make the is insufficient. As we said in Bowles v. Bourdon, “ ‘[t]he existence of material facts more probable or less probable.”). proof must establish causal connection beyond the point of When the only evidence of a vital fact is circumstantial, conjecture. It must show more than a possibility. Verdicts the expert cannot merely draw possible inferences from the must rest upon reasonable certainty of proof. Where the proof evidence and state that “in medical probability” the injury discloses that a given result may have occurred by reason of was caused by the defendant's negligence. The expert must more than one proximate cause, and the jury can do no more explain why the inferences drawn are medically preferable than guess or speculate as to which was, in fact, the efficient to competing inferences that are equally consistent with the cause, the submission of such choice to the jury has been known facts. Thus, when the facts support several possible consistently condemned by this court and by other courts.’ ” conclusions, only some of which establish that the defendant's 219 S.W.2d at 785 (quoting Ramberg v. Morgan, 209 Iowa negligence caused the plaintiff's injury, the expert must 474, 218 N.W. 492, 498–99 (1928)). explain to the fact finder why those conclusions are superior based on verifiable medical evidence, not simply the expert's The Casases argue that the foul smell, which is consistent opinion. See Lenger, 455 S.W.2d at 707 (“[E]xpert testimony with an anaerobic infection, is strong evidence of such an that the event is a possible cause of the condition cannot infection. Looking at the patient notes for July 24, Dr. Daller ordinarily be treated as evidence of reasonable medical commented on the smell: probability except when, in the absence of other reasonable A. The text says something about drainage to the abdomen causal explanations, it becomes more likely than not that the with moderate amount of drainage. And it says that it is condition did result from the event.”); Hart, 399 S.W.2d at foul smelling. 792 (“The burden of proof is on the plaintiff to show that the injury was negligently caused by the defendant and it is not .... enough to show the injury together with the expert opinion that it might have occurred from the doctor's negligence

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

I think there's a number of reasons why she would Q. The [previous notes] that I remember that we have gone have had a bad smell, none of which can be over didn't say anything about foul smelling? explained by four or five days of not getting Flagyl [or] Maxipime. A. That's correct. They were just described as I recall as [16] [17] Here again, there are competing explanations being purulent and looking like puss [sic]. for the smell, which amounts to no more than circumstantial Q. What does that mean when it says “foul smelling”? evidence of some kind of infection or possibly dying tissue. Because there is no direct evidence of the infection and A. When you have foul smelling, it suggests that the the circumstantial evidence is meager, we “must consider organism is an anaerobe. In other words, one of those not just favorable but all the circumstantial evidence, and bacteria that didn't need oxygen in order to grow that, for competing inferences as well.” City of Keller, 168 S.W.3d example, Flagyl would treat. at 814. Courts should not usurp the jury's role as fact finder, nor should they question the jury's right to believe one Q. Okay. Does that give you clinical evidence that had she witness over another. But when reviewing a verdict for been continued on Maxipime and Flagyl that they would sufficiency of the evidence, courts need not—indeed, must have had some effect with regards to the condition as we not—defer to the jury's findings when those findings are not see it on the 24th? supported by credible evidence. When the evidence compels A. Well, like I said, most anaerobes are sensitive or the jury to guess if a vital fact exists, a reviewing court does susceptible to Flagyl. And she had previously been on not undermine the jury's role by sustaining a no-evidence Flagyl and at this time she is not. So I would have expected challenge. The evidence in this case—being consistent with that that would be an appropriate antibiotic that would have an anaerobic infection that was treatable by Flagyl, a fungal covered the organism that's causing that foul smell. infection that was not, or even with dying tissue, cancerous or otherwise—did not provide the jury a reasoned basis Dr. Berkowitz, the Hospital's expert, offered several other from which to infer the presence of a negligence—induced explanations for the smell, including necrotic tissue, dead infection. Because the jury could not reasonably infer an cancer tissue, and the Candida infection. 8 As *538 noted, infection caused by the Hospital's negligence, we agree with Casas's son noticed the smell after the incision was opened the Hospital that no evidence supports the jury's verdict. to drain the abscess, which Dr. Daller admitted was likely caused by Candida. We understand the Casas family's predicament and frustration at the Hospital's conduct, and we recognize the difficulty 8 of proving that the lapsed prescriptions caused a painful Dr. Berkowitz testified: infection. But the Casases shouldered that burden and must I think that there are a number of things that can prove the causal link with reasonable certainty. In that quest, cause things smelling bad besides just infection. Tissue that dies doesn't smell good. There's bacteria the Casases offered the testimony of Dr. Daller, but he did not and products released by the dead tissue that don't explain why an undetected, anaerobic infection is medically smell good. more probable than one based on the known infections and And we know based on the pathology report of the the dying tissue, leaving the jury to guess if the lapsed cancer that they took out of her abdomen, that this prescriptions caused additional pain and suffering. Without had grown enough that it was dying. In other words, probative medical testimony that the lapse caused—by means it was probably outgrowing it's [sic] blood supply of an infection treatable by Maxipime and Flagyl—more pain and was starting to die. That in and of itself can than the cancer, the surgery, and the other infections already smell bad. Then you have a wound that is infected; inflicted, there is no legally sufficient evidence of causation. although Candida itself does not typically smell Dr. Daller did not provide that causal link; accordingly, we bad, not like something dead. It smells funky and hold that his testimony is legally insufficient to support the people don't like the way it smells. The wound itself jury's verdict. Because the Casases failed to prove causation, when it wasn't healing was probably having some we reverse the judgment of the court of appeals and render necrotic tissue, as well, or dead tissue that is in the wound. I'm sure that smelled bad, as well. And they judgment that the Casases take nothing. were never able to completely get rid of all that dead cancer tissue that was in her abdomen.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

district court “abuses its discretion if it acts in an arbitrary B. Adequacy of the Expert Report or unreasonable manner without reference to any guiding [18] [19] In his petition, Dr. Jelinek raises a single issue: rules or principles.” Wright, 79 S.W.3d at 52 (citing Downer whether the trial court abused its discretion by denying his v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 motion for sanctions and dismissal because the Casases' (Tex.1985)). expert report was deficient under former article 4590i § 13.01, the statute in effect at the time. See TEX.REV.CIV. Dr. Jelinek argues that the Casases' report is deficient in two STAT. art. 4590i § 13.01. Article 4590i required the report ways, failing (1) to state the applicable standard of care, and to provide “a fair summary of the expert's opinions as of the (2) to provide more than conclusory statements of causation. date of the report regarding applicable standards of care, the We focus on the latter. Dr. Daller's report concluded that manner in which the care rendered by the physician or health Dr. Jelinek's breach of the appropriate standard of care care provider failed to meet the standards, and the causal in “reasonable medical probability, resulted in a prolonged relationship between that *539 failure and the injury, harm, hospital course and increased pain and suffering being or damages claimed.” Id. § 13.01(r)(6). “If a plaintiff timely experienced by Ms. Casas.” Aside from repeating essentially files an expert report and the defendant moves to dismiss the same phrase twice more, the report says nothing more because of the report's inadequacy, the trial court must grant regarding causation. The Casases argue this statement is the motion ‘only if it appears to the court, after hearing, that sufficient to meet the good-faith requirement. We disagree. the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this An expert cannot simply opine that the breach caused the section.’ ” Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 51– injury. Stated so briefly, the report fails the second Palacios 52 (Tex.2002) (per curiam) (quoting § 13.01(l )). Dismissal element—it does not give the trial court any reasonable basis for failure to serve an adequate expert report also carried for concluding that the lawsuit has merit. See 46 S.W.3d at mandatory sanctions, requiring an award to the defendant 879. An expert's conclusion that “in medical probability” one of his costs and attorney's fees against the plaintiff or the event caused another differs little, without an explanation plaintiff's attorney. See Am. Transitional Care Ctrs. of Tex., tying the conclusion to the facts, from an ipse dixit, which Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001) (citing § we have consistently criticized. See Pollock, 284 S.W.3d at 13.01(e)). 818 (citing Burrow, 997 S.W.2d at 235); Earle, 998 S.W.2d at 890 (“An expert's simple ipse dixit is insufficient to establish [20] [21] We have defined a “good-faith effort” as one that a matter; rather, the expert must explain the basis of his provides information sufficient to (1) “inform the defendant statements to link his conclusions to the facts.”). Instead, the of the specific conduct the plaintiff has called into question,” expert must go further and explain, to a reasonable degree, and (2) “provide a basis for the trial court to conclude that the *540 how and why the breach caused the injury based on claims have merit.” Wright, 79 S.W.3d at 52 (citing Palacios, the facts presented. While we have said that no “magical 46 S.W.3d at 879). All information needed for this inquiry is words” need be used to meet the good-faith requirement, mere found within the four corners of the expert report, which need invocation of the phrase “medical probability” is likewise no not “marshal all the plaintiff's proof” but must include the guarantee that the report will be found adequate. See Wright, expert's opinion on each of the three main elements: standard 79 S.W.3d at 53. of care, breach, and causation. Id. Importantly for this case, the “report cannot merely state the expert's conclusions about Under these standards, the Casases' report is conclusory on these elements,” but “ ‘the expert must explain the basis causation. It offers no more than a bare assertion that Dr. of his statements to link his conclusions to the facts.’ ” Id. Jelinek's breach resulted in increased pain and suffering and (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). a prolonged hospital stay. Beyond that statement, the report “A report that merely states the expert's conclusions about the offers no explanation of how the breach caused the injury. standard of care, breach, and causation” does not fulfill the Again, the plaintiff need not marshal all of his proof in the two purposes of a good-faith effort. Palacios, 46 S.W.3d at report, but he must include sufficient detail to allow the trial 879. court to determine if the claim has merit. Because the Casases' report lacks any explanation linking the expert's conclusion [22] [23] We review the trial court's grant or denial to the relevant facts, we hold that the trial court abused of a motion for sanctions and dismissal under the abuse- its discretion by denying Dr. Jelinek's motion and the court of-discretion standard. Palacios, 46 S.W.3d at 877–78. A

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

of appeals erred by affirming that ruling. 9 See id. at 52. court's order. See Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex.2009) (“Generally, appeals may only be taken Accordingly, we remand the case to the trial court for an from final judgments....”). award of attorney's fees and costs 10 under former article We mention this point because we have since 4590i § 13.01(e) against the Casases and their counsel. 11 cautioned that a defendant—having foregone the interlocutory appeal now available—risks losing the 9 right to appeal following final judgment if, after a trial In his dissent, CHIEF JUSTICE JEFFERSON argues on the merits, the jury finds the defendant liable. See that an expert report need not meet the legal sufficiency id. at 321. Even if the present statute applied here, this requirements necessary to support a judgment and caution would not bar Dr. Jelinek's appeal because he suggests that we hold it must. We agree that an expert was not a party at trial, having been nonsuited earlier. report need not “meet the same requirements as the We will not bar a nonsuited defendant's appeal after evidence offered in a summary-judgment proceeding final judgment because the jury finds him liable at a or at trial.” Palacios, 46 S.W.3d at 879. But, as former codefendant's trial. Such a defendant did not we stated earlier, the report must provide more than call or cross-examine witnesses, present evidence, or conclusory statements concerning applicable standards otherwise participate at trial and should not be bound of care, breach of those standards, and causation. See by what happens there. id. An expert report must instead, within its four corners, provide some explanation as to each of these elements. TEX.REV.CIV. STAT. art. 4590i § 13.01(r) *541 III. Conclusion (6); Wright, 79 S.W.3d at 52. The report here offered only a conclusory statement concerning causation with For the foregoing reasons, we reverse the court of appeals' no explanation as to how the lapse in antibiotic treatment judgment, render judgment that the Casases take nothing, resulted in longer hospitalization, increased pain and and remand to the trial court for an award of Dr. Jelinek's suffering, or ultimately Casas's death. attorney's fees and costs consistent with this opinion. 10 In her dissent, JUSTICE LEHRMANN indicates that (1) she would remand the case to allow the Casases an opportunity to show that their failure to present an Chief Justice JEFFERSON filed an opinion, dissenting in adequate report was not intentional or the result of conscious indifference, and (2) Dr. Jelinek should not be part, in which Justice GREEN and Justice LEHRMANN entitled to attorney's fees and costs if the Casases can joined. make this showing and submit an adequate report. We Justice LEHRMANN filed an opinion, dissenting in part. note that the Casases did not request a remand of this nature, nor brief the attorney's fees issue. See State v. Brown, 262 S.W.3d 365, 370 (Tex.2008) (observing that Chief Justice JEFFERSON, joined by Justice GREEN and “[a] party generally is not entitled to relief it does not Justice LEHRMANN, dissenting in part. seek” and refusing to sua sponte grant relief that was We must decide whether an expert report gave a “fair not sought); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, summary” of the expert's opinions regarding standard of care, 410 (Tex.1997) (noting that ordinarily, failure to brief failure to meet the standard, and the link between that failure an argument waives error on appeal); TEX.R.APP. P. 38.1(h). and the patient's damages. We must consider the expert's opinions “as of the date of the report.” TEX.REV.CIV. 11 We briefly note that under former article 4590i a trial STAT. art. 4590i § 13.01(r)(6) (repealed 2003). To do so, court's order denying a motion to dismiss premised we must disregard today's holding that, at trial, there was on an inadequate expert report was not immediately no evidence linking the discontinuation of antibiotics to appealable, as it now is under Texas Civil Practice and increased suffering by Casas. The expert report submitted in Remedies Code §§ 51.014 and 74.351. Nor did we this case gave fair notice of a meritorious claim—that the definitively say that mandamus review was appropriate doctor failed to ensure that his patient received antibiotics, for such orders until almost four years after the trial court thereby increasing her pain and suffering. I would affirm the denied Dr. Jelinek's motion for dismissal and sanctions. See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461– court of appeals' judgment with respect to the doctor. 62 (Tex.2008). Thus, we do not fault Dr. Jelinek for waiting until final judgment to seek review of the trial

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

Former article 4590i provided that “[a] court shall grant a I. Background motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not Eloisa Casas, a patient recently diagnosed with colon cancer, represent a good faith effort to comply with the definition was admitted to Rio Grande Hospital for abdominal pain. of an expert report in [the statute].” TEX.REV.CIV. STAT. The cancer had perforated her colon, the contents of which art. 4590i § 13.01(l ). “That definition requires, as to each leaked into her abdominal cavity, causing an abscess. After defendant, a fair summary of the expert's opinions about the doctor drained and surgically removed the abscess, the applicable standard of care, the manner in which the he discovered that Casas had an E. coli infection, for care failed to meet that standard, and the causal relationship which the doctor prescribed two antibiotics. Although those between that failure and the claimed injury.” Am. Transitional prescriptions were supposed to have been renewed five days Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, later, they lapsed. Casas contends this mistake occurred 878 (Tex.2001) (citing TEX.REV.CIV. STAT. art. 4590i § because the doctor failed to ensure that hospital staff complied 13.01(r)(6)). Because an expert report is filed long before with his renewal order. During the four days after the discovery is complete, we cannot judge it according to what prescriptions expired, Casas's surgical incision began to emit subsequent discovery reveals or how the evidence develops a putrid odor. She developed several infections in addition to at trial. The question is whether the report fairly summarizes E. coli, exacerbating her pain and extending her stay in the the malpractice elements before the case is tested in a full hospital. Casas died two months after she was discharged. adversary process. For that reason, “to avoid dismissal, a plaintiff need not present evidence in the report as if it were Casas's estate sued the Hospital and two of the actually litigating the merits. The report can be informal in treating doctors, Dr. Garcia–Cantu and Dr. Jelinek, for that the information in the report does not have to meet the negligently causing Mrs. Casas “grievous embarrassment and same requirements as the evidence offered in a summary- humiliation, as well as excruciating pain the remainder of judgment proceeding or at trial.” Id. at 879. her life which she would not have suffered to such degree if properly diagnosed, treated and cared for....” The trial The report must also give the defendant notice of the conduct court denied Dr. Jelinek's motion to dismiss the case against the plaintiff challenges, and the trial court must have a him. Nevertheless, the estate nonsuited both doctors more basis to determine whether the claim has merit. Id. The than a year before Casas's claim against the Hospital was dividing line between a sufficient and an inadequate report is tried to a jury. At that trial, the jury found the hospital 90% impossible to draw precisely. We have said, therefore, that the negligent, and each doctor 5% negligent. The trial court determination must be made in the first instance by the trial rendered judgment against the hospital, and the court's order court, and review of that decision asks not how an appellate non-suiting Dr. Jelinek “with prejudice” merged into that court would have resolved the issue, but instead whether the final judgment. trial court abused its discretion. See, e.g., Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006); Walker v. Gutierrez, 111 Dr. Jelinek and the hospital appealed the trial court's S.W.3d 56, 63 (Tex.2003). judgment. The hospital complained that the evidence was legally insufficient to support the verdict. Dr. Jelinek complained that the trial court improperly denied him III. Dr. Daller's report attorney's fees, as the expert report was not a good faith effort to comply with statutory requirements. The court of appeals Dr. Daller is a physician and an expert on intra-abdominal affirmed, 2008 WL 2894889, *9–*10, 2008 Tex.App. LEXIS abscesses and infection. His report states that a doctor treating 5647, *28–*29 (Tex.App.-Corpus Christi July 29, 2008), and a patient like Casas must ensure that the antibiotics he the appellants below are now petitioners here. I fully join prescribes are actually administered. Despite that standard, the *542 Court's rendition of judgment for the hospital. I Dr. Daller states that antibiotics prescribed for Ms. Casas disagree with the Court's holding as to the doctor. were not administered from July 17 through July 23, even though “[t]here [wa]s no order to discontinue the antibiotic therapy.” He concluded that Dr. Jelinek breached the standard II. Good faith effort; fair summary of care by his “failure to recognize that the antibiotics were not being administered as ordered.” Dr. Daller concludes that “[t]his breach in the standard of care ..., within reasonable

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

medical probability, resulted in a prolonged hospital course must satisfy Palacios's two-part test. Id. at 52. Because the and increased pain and suffering....” report “lack[ed] information linking the expert's conclusion (that [the plaintiff] might have had a better outcome) to [the defendant's] alleged breach (that it did not correctly read and IV. Dr. Daller gave a “fair summary” of the required act upon the x-rays), the trial court could have reasonably standard of care and how the allegedly inadequate care determined that the report was conclusory.” Id. at 53. fell below that standard. In each of those cases, the trial court could not have The Court concludes that Dr. Daller's report lacks the detail evaluated the claim's merit without speculating about actions necessary to conclude that the estate's lawsuit has merit. the defendant could have taken to prevent injury. No such But the cases it cites as support involve situations in which speculation is required here. Dr. Daller states that had the a hindsight view is entirely appropriate. Earle v. Ratliff, antibiotics been administered from July 17 through July 23, for example, is a summary judgment case; it presents the Eloisa Casas would have suffered less. Dr. Daller could have higher evidentiary standard that Palacios rejected for expert stated that conclusion in greater detail, of course, but “[a] reports. Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999) report need not marshal all the plaintiff's proof.” Palacios, 46 (“Summary judgment can be granted on the affidavit of an S.W.3d at 878. Daller's report includes his opinions on (1) interested expert *543 witness, ... but the affidavit must not the applicable standard of care (to maintain vigilance over a be conclusory.... [R]ather, the expert must explain the basis of patient's treatment), (2) the manner in which the care failed to his statements to link his conclusions to the facts.”). Similarly, meet that standard (failing to ensure the treatment he ordered the standard employed in City of San Antonio v. Pollock, 284 was actually administered), and (3) the causal connection S.W.3d 809, 817–18 (Tex.2009), also cited by the Court, is between the failure and the claimed injury (without the inapplicable here, since it examined an expert report under the antibiotics, the patient's pain and suffering increased and she “no evidence” standard of review. See ––– S.W.3d at ––––. required additional hospitalization).

In Palacios we held that an expert report that failed to A “good faith effort” does not require that the report “meet articulate a standard of care or explain how the defendant the same requirements as the evidence offered in a summary- hospital breached that standard was not a good faith effort to judgment proceeding or at trial”; therefore, an expert report comply with the statutory requirements. Palacios, 46 S.W.3d does not fail the good faith effort test merely because it at 880. The expert in that case blamed the hospital for taking may not later prove legally sufficient to support a judgment. no action to prevent a patient from falling out of his bed, Id. at 879. So, here, whether the Casas estate ultimately even though the patient “had a habit of trying to undo his amassed sufficient proof in an adversarial trial is beside the restraints.” Id. at 879–880. The report, as such, was not a fair point; the claim itself was far from frivolous. See id. at 878 summary of the evidence because it neglected to articulate (noting that “one purpose of the expert-report requirement what actions the hospital should have taken that it did not. is to deter frivolous *544 claims”). The law imposes a Id. at 880. Thus, the trial court did not abuse its discretion by penalty for filing a frivolous suit. Only by today's decree dismissing the plaintiff's claim for lack of a good faith effort does it also punish a claimant for failing to win an arguably to summarize the expert's opinions. meritorious case. Cf. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (1991) (holding that “sanctions Subsequently, in Bowie Memorial Hospital v. Wright, we cannot be used to adjudicate the merits of a party's claims or held that the trial court did not abuse its discretion in defenses unless a party's hindrance of the ... process justifies concluding that an expert report failed to comply with the a presumption that its claims or defenses lack merit.”). statute, as the report did not “establish how any act or omission of employees of Bowie Memorial Hospital caused I agree with the Court that the Estate failed to prove causation or contributed to [the patient's] injuries.” See Bowie Mem'l at trial; I disagree that, as to Dr. Jelinek, the expert report Hosp. v. Wright, 79 S.W.3d 48, 51–53 (Tex.2002) (quoting was not a good faith attempt to comply with the statute. I the expert in that case as speculating, “I do believe that it respectfully dissent in part from the Court's judgment. is reasonable to believe that if the x-rays would have been correctly read and the appropriate medical personnel acted upon those findings then [the plaintiff] would have had the Justice LEHRMANN, dissenting in part. possibility of a better outcome.”). We observed that a report

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 Jelinek v. Casas, 328 S.W.3d 526 (2010) 54 Tex. Sup. Ct. J. 272

of section 13.01(g).” Walker v. Gutierrez, 111 S.W.3d 56, I fully join Chief Justice Jefferson's dissent. I write separately, 62 (Tex.2003). Thus, health care claimants could receive however, to highlight the incongruity inherent in the Court's an opportunity to rectify deficiencies in a report if they decision to remand the case for an award of attorney's fees could show that they did not intentionally, or with conscious and costs under former article 4590i § 13.01(e), given this indifference, submit an inadequate report. case's circumstances. See TEX.REV.CIV. STAT. art. 4590i § 13.01(e) (repealed 2003) 1 . The Court presumes that Dr. Here, the Casases never had the chance to request an Michael Jelinek is entitled to attorney's fees because the opportunity to cure any deficiencies in their report because expert report filed by Eloisa Casas's estate 2 was, on appeal, the trial court determined that the report adequately complied determined to be insufficient. But, after a pre-trial hearing with section 13.01(d). In Gutierrez, we were guided by our was held on the defendant's motion to dismiss the lawsuit, the recognition that it would be “perverse” to allow a claimant trial court rejected Dr. Jelinek's contention that the report was who filed no report a second chance to comply with the inadequate; consequently, the Casases had no opportunity to statute's expert report requirement, while “punishing those rectify any deficiencies as the statute and our precedent would who attempt to comply with the statute but fail.” Id. In have allowed. this case, perversely, the Casases may have been in a better position *545 than they are now if the trial court had 1 See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, found that the report was inadequate; they might have had an 1995 Tex. Gen. Laws 985, 986, amending the Medical opportunity to eliminate any deficiencies. Liability and Insurance Improvement Act of Texas, Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. I agree fully with Chief Justice Jefferson that the report Gen. Laws 2039, 2041, repealed by Act of June 2, 2003, represents a good-faith effort to comply with section 13.01. 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws Even if it did not, however, I would remand the case to 847, 884. For ease of reference, I will refer to the relevant allow the Casases an opportunity to show that their failure provisions as they were identified in article 4590i. to present an adequate report was not intentional or the 2 I refer to the estate, which was represented by Casas's result of conscious indifference. See City of DeSoto v. White, husband and son, as “the Casases.” 288 S.W.3d 389, 401 (Tex.2009) (remanding in the interest of justice sua sponte to allow police officer “to make an Section 13.01(e) of article 4590i provided for an order appellate election with full knowledge of his appellate rights awarding attorney's fees and costs if a health care claimant and with knowledge of” the guidance provided in Court's failed to supply an expert report within the time required opinion). In my view, the Casases should not be assessed under subsection (d)—180 days. But the statute provided attorney's fees and costs if they can make the showing section several avenues for health care claimants to obtain an 13.01(g) requires and then submit a report complying with the extension of the 180–day deadline, including section statute. For these reasons, as well as those expressed by Chief 13.01(g). That provision required the trial court to grant a Justice Jefferson, I respectfully dissent in part. thirty-day extension of the statutory deadline if a claimant's failure to provide an expert report was not intentional or the result of conscious indifference. And we have expressly All Citations held that “a party who files a timely but inadequate expert report may seek relief under the grace period provisions 328 S.W.3d 526, 54 Tex. Sup. Ct. J. 272

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 Kelly v. Rendon, 255 S.W.3d 665 (2008)

Affirmed. 255 S.W.3d 665 Court of Appeals of Texas, Houston (14th Dist.). West Headnotes (25)

Michael V. KELLY, II, M.D. and Michael V. Kelly, II, M.D., P.A. d/b/a Aesthetic Surgery [1] Health Center of Houston; Amit Annamaneni, M.D. Affidavits of merit or meritorious defense; and Respiratory Center of North Houston, P.A.; expert affidavits Luis Enrique Castillo, M.D. and North Houston Expert report need not marshal all of the Infectious Disease Associates Correctly Named plaintiff's proof, but it must include the expert's North Houston Infectious Disease Associates, opinion on each of the elements identified in the health care liability statute. V.T.C.A., Civil P.A.; and Houston Northwest Partners Ltd. d/b/ Practice & Remedies Code § 74.351(r)(6). a Houston Northwest Medical Center; Appellants v. 2 Cases that cite this headnote Isidro RENDON, Individually and as Representative of the Estate of Yolanda Leal Rendon; Julian [2] Health Rendon; and Lauren Rendon; Appellees. Affidavits of merit or meritorious defense; expert affidavits No. 14–07–00622–CV. | March 27, 2008. In setting out the expert's opinions in health care Synopsis liability action, the plaintiff is not required to Background: Estate of patient, who died as a result of present evidence in the expert report as if it were complications from necrotizing fasciitis following tummy actually litigating the merits at this preliminary tuck procedure, brought medical malpractice action against stage of the lawsuit, and instead, the information doctors, surgery center, and hospital. The 80th District in the report can be informal as it does not have Court, Harris County, Lynn M. Bradshaw-Hull, J., denied to meet the same standards as evidence offered defendants' motions to dismiss, and they appealed. in a summary judgment proceeding or at trial. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6).

Holdings: The Court of Appeals, John S. Anderson, J., held 2 Cases that cite this headnote that:

[1] doctor, who was board certified in both general [3] Health surgery and plastic surgery and who had experience treating Affidavits of merit or meritorious defense; individuals with the same condition as patient, was qualified expert affidavits to render expert opinion on standard of care for plastic Expert report in health care liability action is surgeon; not required to prove the defendant's liability. V.T.C.A., Civil Practice & Remedies Code § [2] internal medicine specialist/ infectious disease physician 74.351(r)(6). and internal medicine/critical care physician were qualified to render expert opinions on the standard of care for a plastic 1 Cases that cite this headnote surgeon; and [4] Health [3] nurses' reports, standing alone, could not meet the Affidavits of merit or meritorious defense; statutory expert report requirement on medical causation. expert affidavits Expert report in health care liability action must provide only enough information to fulfill two

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Kelly v. Rendon, 255 S.W.3d 665 (2008)

purposes: (1) it must inform the defendant of from necrotizing fasciitis following tummy tuck the specific conduct the plaintiff has called into procedure. V.T.C.A., Civil Practice & Remedies question and (2) it must provide a basis for the Code § 74.401(a)(1). trial court to conclude that the claims have merit. V.T.C.A., Civil Practice & Remedies Code § 1 Cases that cite this headnote 74.351(r)(6). [9] Evidence 3 Cases that cite this headnote Due care and proper conduct in general An internal medicine specialist/infectious [5] Health disease physician and internal medicine/critical Affidavits of merit or meritorious defense; care physician were qualified to render expert expert affidavits opinions on the standard of care for a plastic In deciding whether the statutory standard has surgeon in health care liability action involving been met for expert report under health care patient, who died as result of complications liability statute, the trial court examines only the from necrotizing fasciitis following tummy tuck four corners of the expert's report and curriculum procedure; the relevant medical services were vitae. V.T.C.A., Civil Practice & Remedies Code those for a post-surgical patient showing signs § 74.351(r)(6). and symptoms of infection, and both experts had extensive education, training, and experience in 5 Cases that cite this headnote treating individuals similarly situated to patient. V.T.C.A., Civil Practice & Remedies Code § [6] Appeal and Error 74.401(a)(1), (c)(2). Rulings on Motions Relating to Pleadings 6 Cases that cite this headnote Appellate courts review a trial court's ruling as to the adequacy of an expert report under health care liability statute for an abuse of discretion [10] Evidence standard. V.T.C.A., Civil Practice & Remedies Due care and proper conduct in general Code § 74.351(r)(6). Health care liability statute does not require a medical expert be practicing in the exact 2 Cases that cite this headnote same field as the defendant physician, but, instead, requires only that the expert be actively [7] Appeal and Error practicing medicine in rendering medical care Abuse of discretion services relevant to the claim. V.T.C.A., Civil Practice & Remedies Code § 74.401(c)(2). Appellate court may not reverse a trial court's discretionary ruling simply because appellate 5 Cases that cite this headnote court might have decided it differently.

Cases that cite this headnote [11] Evidence Due care and proper conduct in general [8] Evidence Doctor, who was board certified in both general Due care and proper conduct in general surgery and plastic surgery, was qualified to render expert opinion on standard of care Doctor, who was board certified in both general for infectious disease specialist in health care surgery and plastic surgery and who had liability action involving patient, who died experience treating individuals with the same as result of complications from necrotizing condition as patient, was qualified to render fasciitis following tummy tuck procedure; expert opinion on the standard of care for plastic fact that doctor was plastic surgeon did not surgeon in health care liability action involving automatically preclude him from rendering patient, who died as a result of complications

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Kelly v. Rendon, 255 S.W.3d 665 (2008)

an expert opinion against infectious disease Because the plain language of the health care specialist, and doctor stated that he had treated liability statute defined “physician” to include many individuals with the same condition as a person licensed to practice medicine in one patient, and he had performed diastasis recti or more states in the United States and each of abdominoplasty surgery on numerous occasions patient's experts met that requirement, experts and had diagnosed and treated patients who had were not unqualified on the basis that they were been diagnosed as having necrotizing fasciitis. not licensed in the State of Texas. V.T.C.A., V.T.C.A., Civil Practice & Remedies Code § Civil Practice & Remedies Code § 74.401(g)(1). 74.401(a)(1). Cases that cite this headnote 3 Cases that cite this headnote [16] Health [12] Evidence Affidavits of merit or meritorious defense; Due care and proper conduct in general expert affidavits Fact that doctor was a plastic surgeon and Under the health care liability statute, a nurse not an infectious disease specialist did not was not qualified to render an opinion on automatically preclude doctor, who was plastic medical causation, and accordingly, nurses' surgeon, from rendering an expert opinion reports, standing alone, could not meet the against an infectious disease expert in health statutory expert report requirement on medical care liability action. V.T.C.A., Civil Practice & causation. V.T.C.A., Civil Practice & Remedies Remedies Code § 74.401(c)(2). Code § 74.351(r)(5)(C).

Cases that cite this headnote 2 Cases that cite this headnote

[13] Evidence [17] Health Due care and proper conduct in general Affidavits of merit or meritorious defense; Doctor, who was board certified in both expert affidavits general surgery and plastic surgery, and internal While a nurse's report, standing alone, is medicine/infectious disease physician were both inadequate to meet the requirements of the health qualified to render expert opinions on the care liability statute as to medical causation, standard of care for pulmonologist in health care nothing in the statute prohibits an otherwise liability action involving patient, who died as a qualified physician from relying on a nurse's result of complications from necrotizing fasciitis report in the formation of the physician's own following tummy tuck procedure. V.T.C.A., opinion. V.T.C.A., Civil Practice & Remedies Civil Practice & Remedies Code § 74.401(a)(1). Code § 74.351(r)(5)(C); Rules of Evid., Rule 703. Cases that cite this headnote 7 Cases that cite this headnote [14] Health Standard of Care [18] Health The public or private status of a hospital does not Affidavits of merit or meritorious defense; impact the standard of care expected of a doctor expert affidavits practicing in that hospital. Because doctors incorporated nurse's report into their own expert reports and relied on Cases that cite this headnote nurse's report in the formation of their opinions regarding the standard of care and causation [15] Evidence as it applied to hospital, trial court did not Due care and proper conduct in general abuse its discretion in considering nurse's report

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Kelly v. Rendon, 255 S.W.3d 665 (2008)

in its determination of hospital's motion to Affidavits of merit or meritorious defense; dismiss patient's health care liability claim for expert affidavits inadequacy of patient's expert reports since it had Doctor's expert report was not deficient under become part of the reports of patient's physician health care liability statute as it addressed experts. V.T.C.A., Civil Practice & Remedies the standard of care in sufficient detail to Code § 74.351(r)(5)(C). apprise each defendant physician of patient's complaints regarding their alleged violations 4 Cases that cite this headnote of the standard of care, and with regard to his causation opinions, doctor's expert report [19] Health specifically addressed each defendant physician Affidavits of merit or meritorious defense; and linked his causation opinions to specific expert affidavits facts, such that each defendant physician had There is no requirement that a health care notice of the complaints against them. V.T.C.A., liability plaintiff file a single, all-encompassing Civil Practice & Remedies Code § 74.351. expert report. V.T.C.A., Civil Practice & 6 Cases that cite this headnote Remedies Code § 74.351(i).

Cases that cite this headnote [23] Health Affidavits of merit or meritorious defense; [20] Health expert affidavits Affidavits of merit or meritorious defense; Under health care liability statute, expert reports expert affidavits are simply a preliminary method to show a The fact that expert's report addressed only plaintiff has a viable cause of action that is not one of the defendant physicians was of no frivolous or without expert support. V.T.C.A., consequence because there was no requirement Civil Practice & Remedies Code § 74.351(r)(6). that a health care liability plaintiff file a single, 5 Cases that cite this headnote all encompassing expert report and because, when all of the expert reports were considered together, they addressed all the defendant [24] Health physicians. V.T.C.A., Civil Practice & Remedies Affidavits of merit or meritorious defense; Code § 74.351(i). expert affidavits Because patient's experts reviewed doctor's Cases that cite this headnote autopsy reports in the preparation of their opinions and addressed the final cause of death, [21] Health necrotizing fasciitis, following tummy tuck Affidavits of merit or meritorious defense; procedure, the expert reports met the statutory expert affidavits requirements under health care liability statute. The two-fold purpose of an expert report under V.T.C.A., Civil Practice & Remedies Code § health care liability statute is to inform the 74.351(r)(6). defendants of the specific conduct the plaintiff Cases that cite this headnote has called into question, and to provide the trial court with a basis to determine whether or not the plaintiff's claims have merit. V.T.C.A., Civil [25] Costs Practice & Remedies Code § 74.351. Injuries to persons Because trial court did not abuse its discretion 2 Cases that cite this headnote when it denied defendant physicians' motions to dismiss patient's health care liability claim [22] Health for inadequacy of expert reports, defendant

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Kelly v. Rendon, 255 S.W.3d 665 (2008)

physicians were not entitled to their reasonable On September 20, 2004, forty-three year old Yolanda attorney fees and costs. V.T.C.A., Civil Practice Rendon consulted Dr. Kelly complaining of weakness and & Remedies Code § 74.351(b)(1). protrusion of the abdomen. Dr. Kelly examined Ms. Rendon and recommended she have diastasis recti abdominoplasty Cases that cite this headnote surgery, a surgical procedure commonly called a tummy tuck. On October 20, 2004, Ms. Rendon had preoperative lab work performed with many bacteria noted in the urine. No further lab work was done and no preoperative antibiotic therapy Attorneys and Law Firms was ordered. On November 1, Dr. Kelly performed the tummy tuck procedure on Ms. Rendon with no complications *668 Curry L. Cooksey, Spring, Alicia T. Kramer, Angela reported. N. Clarke, Houston, D. Allan Jones, The Woodlands, Gary Sommer, James R. Boston, Marion Woodrow Kruse, Jr., On the evening of November 2, Ms. Rendon experienced a Richard M. Law, Houston, for appellants. fever of 101.3. The Northwest Houston nurse contacted Dr. Kelly by telephone. Dr. Kelly ordered Tylenol for the fever. John M. O'Quinn, Stacy Lee Little, Neil C. McCabe, Houston, Dr. Kelly did not order any lab work or x-ray testing and did for appellees. not go to the hospital to evaluate Ms. Rendon's condition. Panel consists of Chief Justice HEDGES and Justices ANDERSON, and BOYCE. Beginning soon after midnight on November 3, Ms. Rendon's condition began to rapidly worsen. In addition to fever, Ms. Rendon experienced nausea, vomiting, burning abdominal OPINION pain, decreased urine output that was dark and concentrated, and weakness. The nurse determined Ms. Rendon was JOHN S. ANDERSON, Justice. experiencing decreased oxygen saturation and her lungs were congested. Despite Ms. Rendon's deteriorating condition, the Appellees, Isidro Rendon, individually and as representative nurses made no effort to contact Dr. Kelly. Dr. Kelly finally of the estate of Yolanda Rendon, Julian Rendon, and Lauren saw Ms. Rendon at 10:00 a.m. the morning of November Rendon, filed suit against appellants, Michael V. Kelly, II, 3. Dr. Kelly concluded Ms. Rendon's fever was caused by M.D. and Michael V. Kelly, II, M.D., P.A. d/b/a Aesthetic her getting out of bed. Dr. Kelly ordered no diagnostic tests, Surgery Center of Houston (collectively “Dr. *669 Kelly”); discontinued the Tylenol and started her on pain medication Amit Annamaneni, M.D. and Respiratory Center of North and an oral antibiotic. Houston, P.A. (collectively “Dr. Annamaneni”); Luis Enrique Castillo, M.D. and North Houston Infectious Disease About noon on November 3, Ms. Rendon's oxygenation level Associates, correctly named North Houston Infectious continued to decrease and she complained of dizziness. The Disease Associates, P.A. (collectively “Dr. Castillo”); nurses started Ms. Rendon on supplemental oxygen therapy and Houston Northwest Partners Ltd. d/b/a Houston that resulted in a small increase in Ms. Rendon's oxygenation Northwest Medical Center (“Houston Northwest”), for level. The duty nurses did not report this development to Dr. medical malpractice. Appellants each filed objections to Kelly. appellees' expert witness reports and moved to dismiss appellees' suit pursuant to section 74.351 of the Texas During the afternoon of November 3, Ms. Rendon's condition Civil Practice and Remedies Code. The trial court denied continued to worsen as it was determined her urine output appellants' motions. Appellants then filed this interlocutory over the past eight hours was only fifty milliliters. When appeal contending the trial court abused its discretion when it the nurses did contact Dr. Kelly, he ordered additional denied their motions to dismiss. We affirm. supplemental oxygen and ordered a chest x-ray, which was performed at 2:00 p.m. This x-ray revealed no acute disease. At 4:30 p.m., the nurses again contacted Dr. Kelly by FACTUAL AND PROCEDURAL BACKGROUND telephone and he ordered a CBC test and IV fluid hydration. The CBC test noted the white blood count was at a normal level but with bands exhibiting high critical at 40%. Starting

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Kelly v. Rendon, 255 S.W.3d 665 (2008)

at 4:31 p.m. and continuing for the rest of the evening, antibiotics at 7:50 p.m. and at 11:50 p.m., a third antibiotic Ms. Rendon's condition severely deteriorated. Ms. Rendon's was added. blood pressure was critically low and she required continued supplemental *670 oxygen therapy to maintain her oxygen As November 3 came to a close, all three doctors treating saturation levels. At 5:00 p.m., a Foley catheter was inserted Ms. Rendon agreed she was in septic shock, but none and Ms. Rendon produced only a small amount of urine, recommended she be taken back to surgery for exploration which was cloudy and had a foul odor. Throughout the and drainage of the surgical wound. afternoon of November 3, Ms. Rendon was kept on the regular post op inpatient unit. Throughout November 4, Ms. Rendon's condition continued to decline. Ms. Rendon's white blood count was high and At 6:00 p.m., Dr. Kelly consulted with Dr. Annamaneni, a continued to increase. She continued to receive morphine for critical care specialist and pulmonologist. Dr. Annamaneni the severe pain she suffered in her abdomen and legs. Ms. saw Ms. Rendon an hour later and ordered she be transferred Rendon also began to experience additional complications to the intensive care unit (“ICU”). Dr. Annamaneni noted as a result of the severe sepsis: pulmonary edema, kidney Ms. Rendon had fever, tenderness in the midepigastric and failure, and multi-system organ failure. At 5:30 p.m., Dr. lower rib cage areas, feeble pulse, headache, shortness of Kelly aspirated a small amount of fluid from the lower area of breath, and severe hypotension. Dr. Annamaneni also noted the abdominal wound, which was sent to the lab for testing. Ms. Rendon complained of having burning, crawling pain extending from below the left breast area all the way to On November 5, Ms. Rendon had severe difficulty breathing, the left ankle for the last day or so. Dr. Annamaneni's which required she be intubated and placed on a ventilator. differential diagnosis included likely sepsis and septic shock, At 9:40 a.m., the lab notified the ICU that the body fluid and he noted the source could be the abdomen, urinary tract collected by Dr. Kelly the previous evening was positive infection, or the lungs. Ms. Rendon's white blood count was for Beta Hymolytic Streptococcus Group A bacteria. Dr. now twenty-three. As part of his transfer of Ms. Rendon to Kelly noted the lab results revealed necrotizing fasciitis. the ICU, Dr. Annamaneni ordered additional tests. Following Also on November 5, Dr. Castillo called in another surgeon Dr. Annamaneni's evaluation, Ms. Rendon was transferred to for evaluation *671 of Ms. Rendon for a possible return the ICU at 7:45 p.m. to surgery for debridement of the necrotizing fasciitis. Additional antibiotic therapy was also ordered. While Dr. At 7:50 p.m., Dr. Castillo, an infectious disease specialist, Castillo agreed Ms. Rendon had to be taken back to surgery assessed Ms. Rendon and noted she looked acutely ill for exploration, drainage, and debridement of her abdominal with low blood pressure, elevated heart rate, edema of the wound, because of her critically low platelet count, her return abdomen, and erythema. In addition, Dr. Castillo noted Ms. was delayed while she was given platelets and fresh, frozen Rendon's abdomen was so tender he could not deeply palpate plasma. it. Dr. Castillo noted Ms. Rendon was in shock two days after her abdominoplasty, this shock was probable septic, and the Ms. Rendon was taken into surgery at 9:05 p.m. in critical operative site was the most likely source of infection. Dr. condition. While Ms. Rendon was in the operating room, a Castillo then recommended Ms. Rendon have a CT scan of code was called at 9:27 p.m. and all efforts to resuscitate her abdomen and pelvis. However, he did not order the CT be her were unsuccessful with those efforts ending at 9:45 p.m. performed, nor did Dr. Kelly or Dr. Annamaneni. Prior to the code, Dr. Kelly opened the surgical wound and discovered a considerable amount of necrotic fatty tissue At 9:30 p.m., Ms. Rendon's condition was so critical, she was and suctioned off the necrotic tissue and a large amount started on two pressor medications to keep her systolic blood of murky fluid from Ms. Rendon's abdomen. Dr. Kelly did pressure up. At 10:00 p.m., Ms. Rendon complained of pain not send any of the removed necrotic tissue or the fluid to of such severity in her abdomen and legs that Dr. Annamaneni pathology, but instead, discarded it. The Death Summary, ordered she be given morphine every two hours as needed signed by Dr. Kelly noted the diagnoses at death of “diastasis for pain. Ms. Rendon developed generalized edema and a recti” 1 and necrotizing fasciitis. Dr. Kelly also signed Ms. third medication was added at 11:45 p.m. for blood pressure Rendon's Certificate of Death, which noted the immediate support. Ms. Rendon had been started on two intravenous cause of death to be septic shock with the underlying cause of necrotizing fasciitis.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Kelly v. Rendon, 255 S.W.3d 665 (2008)

[1] [2] [3] [4] This is a health care liability lawsuit 1 This is the original diagnosis leading to the tummy tuck governed by chapter 74 of the Civil *672 Practice & procedure. Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. § 74.001 et seq. (Vernon 2005). Under these provisions, a claimant On November 7, 2004, Dr. Albert Chen conducted an is required to produce an expert report within 120 days of autopsy. Dr. Chen issued a Preliminary Report on November the date the claim is filed. Id. at § 74.351(a). Under the 7, 2004. Dr. Chen issued his Final Report on January 19, statute, the expert report must provide a fair summary of 2005, and a Supplemental Report on September 14, 2006. Dr. the expert's opinions regarding the applicable standards of Chen concluded Ms. Rendon died as a result of complications care, the manner in which the care rendered by the defendant from necrotizing fasciitis. physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, Appellees eventually filed a health care liability lawsuit harm, or damages claimed. Id. at § 74.351(r)(6). An expert against appellants. Pursuant to section 74.351 of the Texas report need not marshal all of the plaintiff's proof, but it must Civil Practice and Remedies Code, appellees served on include the expert's opinion on each of the elements identified appellants the reports of six different experts: (1) Dr. Hubert in the statute. See Am. Transitional Care Ctrs. of Tex., Weinberg, a board certified plastic surgeon; (2) Dr. Richard Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001) (applying F. Edlich, a board certified general and plastic surgeon; (3) predecessor statute). In setting out the expert's opinions on Dr. Paul Marik, who is board certified in internal medicine each of these elements, the plaintiff is not required to present and critical care medicine; (4) Dr. C. David Bakken, who is evidence in the report as if it were actually litigating the board certified in internal medicine and infectious disease; merits at this preliminary stage of the lawsuit. Id. at 879. (5) Lisa Ruth–Sahd, a registered nurse certified in critical Indeed, the information in the report can be informal as it does care and emergency nursing; and (6) Sharla Shumaker, a not have to meet the same standards as evidence offered in registered nurse with experience in critical care nursing. In a summary judgment proceeding or at trial. Id. The expert response, appellants, arguing the reports were deficient, filed report is not required to prove the defendant's liability. See objections to each of the expert reports and moved the trial Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 341 (Tex.App.- court to dismiss appellees' suit. Following a hearing, the trial Texarkana 2004, pet. denied) (applying predecessor statute). court denied appellants' motions. This interlocutory appeal Instead, the report must provide only enough information to followed. 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 DISCUSSION claims have merit. Palacios, 46 S.W.3d at 879.

In this appeal, each set of appellants filed separate briefs [5] In deciding whether the statutory standard has been met, raising issues challenging the trial court's denial of their the trial court examines only the four corners of the expert's motions to dismiss. As might be expected, there is significant report and curriculum vitae. Mem'l Hermann Healthcare Sys. overlap between many of these issues. Therefore, to more v. Burrell, 230 S.W.3d 755, 758 (Tex.App.-Houston [14th efficiently resolve this appeal, and for the sake of clarity, Dist.] 2007, no pet.). If the trial court determines the expert we will consolidate these common issues and address them report does not represent a good faith effort to comply with together. These consolidated issues can be broken down as the statutory definition, then the trial court, subject to its follows: (1) the qualifications of some or all of appellees' discretionary authority to grant a thirty day extension to experts to render expert opinions against appellants; (2) the cure the deficiencies in the report, must grant a motion to adequacy of the appellees' expert reports as some fail to name dismiss challenging the report's adequacy. Tex. Civ. Prac. & a specific defendant; and (3) the adequacy of the appellees' Rem.Code Ann. § 74.351(c), (l ). expert reports on the appropriate standard of care and on causation. After addressing these consolidated issues, we will then turn to the remaining issues raised by a single appellant. II. The Standard Of Review [6] [7] We review a trial court's ruling as to the adequacy of an expert report under an abuse of discretion standard. Estate I. Expert Report Requirements of Regis ex rel. McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex.App.-Houston [14th Dist.] 2006,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Kelly v. Rendon, 255 S.W.3d 665 (2008)

no pet.). The trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any (c) In determining whether a witness is qualified on the guiding rules or principles. Burrell, 230 S.W.3d at 757. We basis of training or experience, the court shall consider may not reverse a trial court's discretionary ruling simply whether, at the time the claim arose or at the time the because we might have decided it differently. Id. testimony is given, the witness:

(1) is board certified or has other substantial training or III. Are Appellees' Experts Qualified To Render experience in an area of medical practice relevant to the Opinions Against Appellants? claim; and

A. Appellees' Physician Experts (2) is actively practicing medicine in rendering medical Each of the physician appellants contend some or all of care services relevant to the claim. appellees' doctors are not qualified to render expert opinions *** against them. In their challenges to appellees' physician experts, appellants attempt to unduly limit the field of experts (g) In this subchapter, “physician” means a person who is: qualified to render opinions against them to (1) doctors licensed only in the State of Texas; (2) who practice in the (1) licensed to practice medicine in one or more states in same medical discipline; and (3) in the same type of hospital the United States.... as each appellant. The statute does not require such specificity Id. § 74.401. when deciding a challenge to an expert's qualifications.

*673 An expert providing opinion testimony regarding 1. Dr. Kelly's Qualification Challenges whether a physician departed from the accepted standards of health care must satisfy the requirements set forth in section a. Dr. Edlich 74.401. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(5)(A). [8] Dr. Kelly initially contends Dr. Edlich is not qualified Section 74.401 provides: to provide expert opinions because, in Dr. Kelly's view, he is not currently practicing medicine in a field relevant to the (a) In a suit involving a health care liability claim against claims against Dr. Kelly and also was not doing so when Dr. a physician for injury to or death of a patient, a person Kelly treated Ms. Rendon. We disagree. The combination of may qualify as an expert witness on the issue of whether Dr. Edlich's report and curriculum vitae establish he is still the physician departed from accepted standards of medical practicing medicine as a physician board certified in both care only if the person is a physician who: general surgery and plastic surgery, and he has experience treating patients with the same condition as Ms. Rendon. As (1) is practicing medicine at the time such testimony is this health care liability case involves the care of a patient given or was practicing medicine at the time the claim following plastic surgery, we hold Dr. Edlich meets the arose; requirements set forth in section 74.401(a)(1) of the Civil (2) has knowledge of accepted standards of medical care Practice and Remedies Code. See Sanjar v. Turner, 252 for the diagnosis, care, or treatment of the illness, injury, S.W.3d 460, 465 (Tex.App.-Houston [14th Dist.] 2008, no or condition involved in the claim; and pet. h.) (citing In re Stacy K. Boone, P.A., 223 S.W.3d 398, 407 (Tex.App.-Amarillo 2006, no pet.) (holding cardiologist (3) is qualified on the basis of training or experience to was qualified to render expert opinion as to general surgeon's offer an expert opinion regarding those accepted standards care because opinion was on post-operative therapy and of medical care. surgeon participated in management of that therapy)).

(b) For the purpose of this section, “practicing medicine” or “medical practice” includes, but is not limited to, training b. Doctors Bakken and Marik residents or students at an accredited school of medicine [9] Next, Dr. Kelly attacks the credentials of both or osteopathy or serving as a consulting physician to Dr. Bakken, an internal medicine and infectious disease other physicians who provide direct patient care, upon the physician, and Dr. Marik, an internal medicine and critical request of such other physicians. care physician, to render opinions on the standard of care for

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Kelly v. Rendon, 255 S.W.3d 665 (2008)

a plastic surgeon *674 such as Dr. Kelly. Once again, we surgeon the antibiotic therapy for the patient.” Dr. Castillo disagree. then goes on to conclude that since Dr. Edlich is a plastic surgeon and not an infectious disease specialist, Dr. Edlich is [10] Here, Dr. Kelly takes the position that both Dr. Bakken not qualified to render an expert opinion against him. and Dr. Marik are not qualified to render opinions against him because their medical specialty is in a different medical [12] While Dr. Castillo is correct Dr. Edlich is a plastic discipline from his own. However, the statute does not surgeon and not an infectious disease specialist, we do require a medical expert be practicing in the exact same not agree this fact automatically precludes Dr. Edlich field as the defendant physician, but instead must only from rendering an expert opinion against an infectious be actively practicing medicine in rendering medical care disease expert. See Broders v. Heise, 924 S.W.2d 148, 154 services relevant to the claim. Tex. Civ. Prac. & Rem.Code (Tex.1996) (applying predecessor statute). In his report, Dr. Ann. § 74.401(c)(2). Here, the relevant medical services Edlich states: “I have treated many patients with the same are those for a post-surgical patient showing the signs and condition as [Ms.] Rendon. I have performed diastasis recti symptoms of infection. abdominoplasty surgery on numerous occasions. I have also diagnosed and treated patients who have been diagnosed as In his report, Dr. Bakken states he has thirty-three years having necrotizing fasciitis.” For the same reasons we found of experience specializing in infectious disease. Dr. Bakken Dr. Bakken and Dr. Marik qualified to render an opinion also states he has “treated many patients in the past with relative to Dr. Kelly, we hold Dr. Edlich is qualified to render similar conditions as [Ms.] Rendon. As [an] infectious disease an opinion regarding Dr. Castillo's treatment of Ms. *675 specialist, [he has] been consulted multiple times for patients Rendon. See Sanjar, 252 S.W.3d at 465; see also Blan, 7 with diagnoses of postoperative wound infections, sepsis, and S.W.3d at 746–47. necrotizing fasciitis.” In his report, Dr. Marik states he has twenty-five years experience in the fields of pulmonary and critical care medicine and is a professor of medicine and chief 3. Dr. Annamaneni's Qualification Challenges of the division of pulmonary and critical care medicine at [13] Dr. Annamaneni, a pulmonologist and critical care Thomas Jefferson University. Dr. Marik also states he has specialist, challenges the qualifications of each of appellees' “treated many patients diagnosed with the same conditions physician experts to render expert opinions against him. 2 as [Ms.] Rendon, including post-operative infection, sepsis, According to Dr. Annamaneni, the medical services relevant septic shock syndrome, and necrotizing fasciitis.” Because to appellees' claims against him are the services provided by both Dr. Bakken and Dr. Marik have extensive education, a pulmonologist/critical care specialist practicing in a private training, and experience in treating patients similarly situated as opposed to a public hospital who was consulted by the to Ms. Rendon, they are qualified to render an opinion on operating plastic surgeon to evaluate a patient in multi-system the standard of care at issue in this case. See Sanjar, 252 organ failure and to manage that patient's hemodynamics S.W.3d at 465; see also Blan v. Ali, 7 S.W.3d 741, 746–47 and who then brought in an infectious disease specialist to (Tex.App.-Houston [14th Dist.] 1999, no pet.) (holding, in a evaluate, manage, and treat a suspected infectious process. summary judgment case, that an expert physician-witness in a healthcare liability case need not practice medicine in the 2 In the same issue on appeal, Dr. Annamaneni also same field as the defendant physician but only establish they challenges the qualifications of appellees' two nurse are qualified to render an opinion on the condition involved experts to render expert opinions against him. We in the claim). address that contention below in section III(B). [14] Based on that statement of the medical services at issue, Dr. Annamaneni then contends Dr. Weinberg, Dr. Edlich, and 2. Dr. Castillo's Qualification Challenge Dr. Bakken all lack the training, education, and experience [11] Dr. Castillo only challenges the qualifications of Dr. Edlich. In support of his position, Dr. Castillo argues to serve as medical experts against him. 3 For the reasons the medical services relevant to appellees' claims “are stated in sections III(A)(1) and (2) above, we disagree these the services provided by an infectious diseases consultant doctors are not qualified to render an opinion against Dr. requested to provide specialized knowledge about the Annamaneni. Dr. Annamaneni also asserts that Dr. Marik, management of antibiotic therapy for a patient following a pulmonologist and critical care specialist like himself, is abdominoplasty and to assume in lieu of the attending plastic not qualified to render an opinion in this suit because he

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Kelly v. Rendon, 255 S.W.3d 665 (2008)

practices in a large, public hospital setting as opposed to a requirements of the statute as to medical causation, nothing private hospital setting. Dr. Annamaneni does not cite any in the health care liability statute prohibits an otherwise legal authority for this unique argument, and we are not qualified physician from relying on a nurse's report in the persuaded the public or private status of a hospital impacts formation of the physician's own opinion. See Tex.R. Evid. the standard of care expected of a doctor practicing in that 703 (stating an expert may base his opinion on facts or data hospital. that is not admissible in evidence if it is of a type reasonably relied on by experts in that particular field); see also Packard 3 Because Dr. Weinberg addresses only Dr. Kelly's v. Guerra, 252 S.W.3d 511, 532–33 (Tex.App.-Houston [14th treatment of Ms. Rendon and does not name Dr. Dist.] 2008, no pet. h.) (holding physician experts could rely Annamaneni in his expert report, his opinions cannot be on the expert opinion of an attorney in the formation of their used against Dr. Annamaneni. Therefore, we need not own opinions regarding the standard of care and causation). reach the issue of whether Dr. Weinberg is qualified to Because Dr. Edlich, Dr. Bakken, and Dr. Marik incorporated render an opinion against Dr. Annamaneni. Nurse Ruth–Sahd's report into their own and relied on it in the [15] Finally, Dr. Annamaneni contends appellees' physician formation of their opinions regarding the standard of care and experts are not qualified under the statute because they are not causation as it applies to Houston Northwest, we conclude licensed in the State of Texas. Because the plain language of the trial court did not abuse its discretion in considering the statute defines “physician” to include a person licensed to Nurse Ruth–Sahd's report in its determination of Houston practice medicine in one or more states in the United States Northwest's motion to dismiss since it had become part of the and each of appellees' physicians meets that requirement, we reports of appellees' physician experts. refuse to find them unqualified on that basis. Tex. Civ. Prac. & Rem.Code Ann. § 74.401(g)(1). Having addressed each of We overrule appellants' issues challenging the qualifications Dr. Annamaneni's qualification arguments, we hold that Dr. of appellees' expert witnesses. 4 Edlich, Dr. Bakken, and Dr. Marik are qualified to render an expert opinion against Dr. Annamaneni. See Sanjar, 252 4 The fact we agree with appellants that Nurse S.W.3d at 465; see also Blan, 7 S.W.3d at 746–47. Shumaker's report, standing alone, cannot address the issue of medical causation, does not change our holding overruling appellants' issues challenging the B. Appellees' Nurse Experts qualifications of appellees' experts because appellees [16] In addition to the reports of the four physicians, filed adequate reports which address medical causation appellees also filed reports prepared by two nurses. Each in addition to the report of Nurse Shumaker. See Tex. appellant challenges these reports by pointing out that nurses Civ. Prac. & Rem.Code Ann. § 74.351(i) (stating there are not qualified under the statute to render expert opinions is no requirement that a health care liability plaintiff file on the issue of causation. We agree with appellants that, a single, all encompassing report). under the statute, a nurse is not qualified to render an opinion on medical causation. Tex. Civ. Prac. & Rem.Code IV. Did Appellees' Expert Reports Fail To Address Any Ann. § 74.351(r)(5)(C). Accordingly, the reports of Nurse Appellants? Shumaker and Nurse Ruth–Sahd, standing alone, can not [19] [20] Dr. Castillo, Dr. Annamaneni, and Houston meet the statutory report requirement on medical causation. Northwest point out that Dr. Weinberg does not address their Id. However, this does not end our analysis because appellees role in the events underlying this lawsuit. Dr. Castillo also filed *676 physician reports in addition to the reports complains Dr. Marik does not address Dr. Castillo's role in prepared by the nurses. his report. Appellants are correct that Dr. Weinberg's report does not address any appellant's actions except those of Dr. [17] [18] In the present case, Dr. Edlich, Dr. Bakken, Kelly, and Dr. Marik does not address Dr. Castillo. Therefore, and Dr. Marik reviewed the report of Nurse Ruth–Sahd and if these two reports were the only reports filed by appellees, incorporated it by reference into their own reports. Each then the trial court would have abused its discretion in finding physician then relied on Ruth–Sahd's report in rendering their appellees had met the statutory expert report requirement as own opinions regarding the standard of care and medical to each appellant. See Tex. Civ. Prac. & Rem.Code Ann. § causation as it applies to Houston Northwest. While a 74.351(a) (requiring a health care liability plaintiff to serve nurse's report, standing alone, is inadequate to meet the an expert report addressing each physician or health care

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Kelly v. Rendon, 255 S.W.3d 665 (2008)

provider defendant). However, there is no requirement that a hospitalization when her necrotizing fasciitis became health care liability plaintiff file a single, all encompassing irreversible; and (4) morbidity and mortality rates for report. Id. § 74.351(i). Here, in addition to Dr. Weinberg's patients similarly situated to Ms. Rendon. Appellants do and Dr. Marik's reports, appellees filed expert reports by not cite any authority in support of their position that a section 74.351 report requires the type of extreme detail two other physicians, as well as two nurses. Thus, when listed above to give defendants notice of the basis of all of appellees' expert reports are considered together, they the claims against them and we are not persuaded the address all appellants. Therefore, the fact Dr. Weinberg's statute dictates such a level of detail. Accordingly, we report addressed only Dr. Kelly and Dr. Marik's ignored Dr. reject appellants' request to require that level of detail in Castillo, is of no benefit to appellants. Packard, 252 S.W.3d a section 74.351 expert report. at 526–27. Dr. Edlich filed a twenty-six page report detailing his opinions regarding the care and treatment Ms. Rendon We overrule appellants' issues arguing the trial court abused received from appellants. Dr. Edlich stated that, in the its discretion based *677 on the fact each of appellees' expert preparation of his report, he reviewed Ms. Rendon's death reports do not address every appellant. certificate, Ms. Rendon's autopsy reports, and medical records from Houston Northwest, Dr. Kelly, and Kelsey V. Are Appellees' Expert Reports Deficient Because Seybold Clinic, Willowbrook. Dr. Edlich's report contains a They Do Not Adequately Address The Standard Of Care section titled “Summary of Facts” that details, almost hour And Causation? by hour, the events underlying this lawsuit beginning with Appellants contend appellees' expert reports are deficient on Ms. Rendon's initial consultation with Dr. Kelly, continuing through the tummy tuck procedure, her post-surgical care, the issues of the standard of care 5 and causation because they and concluding with her death less than five days after are conclusory and do not specifically address each appellant. the surgery. This summary includes Ms. Rendon's condition Because Dr. Edlich is qualified to render an opinion as to the liability of each appellant, for reasons of judicial economy, throughout that time period. 7 Dr. Edlich *678 then lists we initially focus our analysis on his report and will only multiple standards of care for diagnosing and treating patients examine the sufficiency of the remaining expert reports if we demonstrating symptoms like Ms. Rendon's. 8 Dr. Edlich determine Dr. Edlich's report is deficient on the issues of the then embarks on a detailed explanation of how each appellant standard of care and causation. violated the required standard of care. 9 In the final section of his report, Dr. Edlich addresses causation. In the causation 5 Houston Northwest does not raise any standard of care section, Dr. Edlich begins by generally stating that, as a complaints on appeal. result of their deviations from the standard of care, each individually named appellant caused Ms. Rendon's death. Dr. A. Is Dr. Edlich's Expert Report Deficient? Edlich then provides a more detailed analysis explaining how The physician appellants generally assert Dr. Edlich's expert each separate appellant's violations of the standard of care report is conclusory because it lacks sufficient specific caused Ms. Rendon's death. 10 factual detail to adequately apprise appellants of the basis of appellees' claims against them as to the standard of care. 6 7 As an example of the level of detail found in Dr. Edlich's With regard to causation, appellants complain appellees' report, we include a small excerpt here: expert reports are deficient because they only collectively On post op day # 2 (11/03/04), Ms. Rendon's address causation and fail to link their causation opinions to condition severely worsened. At midnight, she specific facts thus rendering them conclusory. continued to have fever of 101.9, followed by nausea and vomiting at 0045, dark concentrated 6 urine with increased burning abdominal pain noted In addition to a failure to state exactly what the standard at 0215, and decreased oxygen saturation of 94% at of care was and what each appellant should have done 0400 with further decrease to 93% at 0500. At 0645, differently to comply with that standard, examples of the nurse assessed that Ms. Rendon's lungs were appellants' specificity complaints include: (1) a failure to congested and her urine continued to be dark and specify which antibiotics appellants should have ordered concentrated. The patient complained of weakness. for Ms. Rendon; (2) the timing for the administration of At 0800, Ms. Rendon had further temperature those antibiotics; (3) the exact time during Ms. Rendon's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Kelly v. Rendon, 255 S.W.3d 665 (2008)

elevation of 101.4 with increased tenderness of the broad spectrum antibiotic therapy, perform an abdomen and declining blood pressure of 100/50. MRI and/or CT scan for evaluation of the No telephone call was made to Dr. Kelly by abdomen, and, if infection were found, take Ms. the nurses to report Ms. Rendon's deteriorating Rendon back to surgery for debridement and condition. Finally, at 1000 on 11/03/04, Dr. Kelly drainage of the wound. saw Ms. Rendon and documented that her continued [2.] Instead, Dr. Kelly merely ordered Tylenol per fever was caused by her getting out of bed. Dr. phone order. He did not order any tests or IV Kelly wrote, “Temp spike to 101 after she got up. antibiotic therapy, and he did not return to the This is commonly seen when pts get up.” Dr. Kelly hospital to assess Ms. Rendon. ordered no diagnostic tests, but merely discontinued 10 Dr. Edlich's causation opinion as to Dr. Kelly is quoted the Tylenol # 3, started Vicodin for pain, and Keflex antibiotic therapy. here in its entirety: Dr. Kelly failed to properly assess the condition of 8 We include an example of one of the standards of care Yolanda Leal Rendon prior to performing surgery listed by Dr. Edlich: on 11/02/04. Dr. Kelly used surgical techniques Standard of Care requires that postoperatively that increased Ms. Rendon's risk for acquiring an patients be assessed for signs and symptoms of infection at Houston Northwest Medical Center, infection to ensure early diagnosis and appropriate including use of inadequate preoperative scrub, treatment. Success of treatment of necrotizing improper use of hospital equipment, lack of fasciitis depends upon this assessment and early appropriate pre-operative antibiotic therapy and treatment of this condition. improper closure of the surgical wound. Dr. Kelly [1.] The most common presenting symptom of then delayed in assessment of Ms. Rendon's necrotizing fasciitis is pain out of proportion to condition on 11/02/04, one day after surgery, the local inflammatory response noted by the when she developed a high fever. He did not patient. order diagnostic tests on 11/02/04 to determine [2.] The patient must be closely monitored for the cause of her elevated temperature, which signs and symptoms of infection, including fever, was an indicator of Strep A infection in a elevated white blood cell count, pain out of postoperative patient less than 24 hrs after surgery. proportion to the operative procedure, lethargy, By 11/03/2004, Dr. Kelly again failed to recognize quickly spreading erythema of the wound, and the rapidly deteriorating condition of Ms. Rendon progressive anesthesia at the site of infection. with signs and symptoms of elevated white blood [3.] Early clinical diagnosis of group A Strep cell count, critical levels of bands in the CBC necrotizing infection can be made by taking a (left shift indicating bacterial infection), lethargy, careful history of the patient and performing an decreased urine output, and critically low blood MRI with aspiration biopsy. pressure. Dr. Kelly did not appropriately treat this [4.] For patients with symptoms of necrotizing condition, perform the proper diagnostic tests for fasciitis, the standard of care mandates that determination of causation of the infection, refer the wound site be immediately assessed as the Ms. Rendon in a timely manner to a surgeon for possible site for infection. consultation, nor did he take Ms. Rendon back for exploratory surgery. In addition, on 11/04/2004, 9 We include an example of a specific violation of the when Ms. Rendon's only hope for survival was standard of care as it applies to Dr. Kelly: to be taken back to surgery for exploration and Dr. Kelly breached the standard of care when he debridement of the postoperative abdominal wound failed to adequately assess Ms. Rendon on the night along with administration of aggressive antibiotic of 11/02/04 when she developed fever of 101.3 at therapy, Dr. Kelly merely aspirated fluid near the 2115. Standard of care requires prompt assessment, incision cite, without use of an MRI, and sent the work-up, and treatment of a post surgical patient specimen to the lab for testing. who develops this type of elevated temp within the Research supports that the most important predictor first post op day. of morbidity and mortality in this severe life [1.] Upon a report of this high of fever on post op threatening infection is the time interval between day # 1, standard of care required that Dr. Kelly the onset of symptoms and definitive surgical go to the hospital immediately to assess Ms. therapy. Necrotizing fasciitis is a progressive, Rendon's condition and her post op wound, order rapidly spreading inflammatory infection located in diagnostic lab tests, order intravenous empiric

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Kelly v. Rendon, 255 S.W.3d 665 (2008)

the deep fascia, causing secondary necrosis of the Id. Because we have determined *680 Dr. Edlich's report subcutaneous tissues. For treatment of necrotizing meets the statutory requirements as to each appellant, we need fasciitis to be successful, this condition must be not address appellants' complaints regarding the other expert diagnosed early on with administration of broad- reports filed by appellees on the issues of the standard of care spectrum antibiotics and rapid surgical debridement and causation. Tex.R.App. P. 47.1. of the involved area. Once necrotizing fasciitis is suspected as being present, the patient should be 11 Appellants cite a litany of cases they contend support immediately taken to the operating room to open up the surgical wound and debride the infected tissue. their contention that appellees' expert reports are Dr. Kelly should have been alert to the methods deficient in their standard of care and causation opinions. to diagnose serious surgical wound infections, like We disagree as all of the cases can be distinguished from necrotizing fasciitis, which include: a diagnostic the present case. Most can be distinguished because, incision to search for infection, ultrasound of the unlike the present case where the trial court denied wound, as well as an MRI of the wound. If appellants' motions to dismiss, the trial court in the cited Dr. Kelly had ordered an MRI exam as early as cases granted the defendants' motions to dismiss and the 11/02/04, he would have diagnosed the abdominal appellate courts found the trial court's dismissal of the infection of Ms. Rendon. With early diagnosis of plaintiff's claims for deficient expert reports was within this infection, Ms. Rendon could have received the trial court's discretion. See Bowie Mem'l Hosp. v. appropriate therapy, which would have saved Wright, 79 S.W.3d 48 (Tex.2002) (affirming trial court's her life. The MRI would have permitted the dismissal of plaintiff's claims); Am. Transitional Care visualization of soft tissue edema in the fascial Ctr. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001) planes of the abdomen for localization of necrotic (same); Apodaca v. Russo, 228 S.W.3d 252 (Tex.App.- tissue and fluid accumulation. With this early Austin 2007, no pet.) (same); Talmore v. Baptist Hosp. diagnosis of suspected Group A infection, Ms. of Southeast Tex. d/b/a Mem'l Hermann Hosp., No. 09– Rendon could have received immediate appropriate 06–024–CV, 2006 WL 2883124 (Tex.App.-Beaumont treatment, including antibiotic therapy, surgical Oct.12, 2006, no pet.) (mem.op.) (same); Lopez v. Sinha, debridement of the wound with excision of No. 14–05–00606–CV, 2006 WL 2669355 (Tex.App.- devitalized tissue, bacteriologic analysis of the Houston [14th Dist.] Sept. 19, 2006, no pet.) (mem.op.) wound, and appropriate antibiotic therapy followed (same); Clark v. HCA, Inc., 210 S.W.3d 1 (Tex.App.- by open wound management. El Paso 2005, no pet.) (same); Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855 (Tex.App.-Houston [1st Dist.] *679 [21] [22] [23] The two-fold purpose of an expert 2006, no pet.) (same); Longino v. Crosswhite, 183 report under section 74.351 is to inform the defendants of S.W.3d 913 (Tex.App.-Texarkana 2006, no pet.) (same); the specific conduct the plaintiff has called into question, and Hardy v. Marsh, 170 S.W.3d 865 (Tex.App.-Texarkana to provide the trial court with a basis to determine whether 2005, no pet.) (same); Taylor v. Christus Spohn Health or not the plaintiff's claims have merit. Patel v. Williams, Sys. Corp., 169 S.W.3d 241 (Tex.App.-Corpus Christi 237 S.W.3d 901, 906 (Tex.App.-Houston [14th Dist.] 2007, 2004, no pet.) (same); Costello v. Christus Santa Rosa no pet.). Pursuant to this standard, we conclude Dr. Edlich's Health Care Corp., 141 S.W.3d 245 (Tex.App.-San report is not deficient as it addresses the standard of care Antonio 2004, no pet.) (same); Russ v. Titus Hosp. in sufficient detail to apprise each appellant of appellees' Dist., 128 S.W.3d 332 (Tex.App.-Texarkana 2004, pet. complaints regarding their alleged violations of the standard denied) (same); Hawkins v. Gomez, No. 01–02–01195– CV, 2004 WL 306077 (Tex.App.-Houston [1st Dist.] of care. Further, we conclude, with regard to his causation Feb. 19, 2004, no pet.) (mem.op.) (same); Strom v. opinions, Dr. Edlich's report specifically addresses each Mem'l Hermann Hosp. Sys., 110 S.W.3d 216 (Tex.App.- appellant and links his causation opinions to specific facts Houston [1st Dist.] 2003, pet. denied) (same); Villa such that each appellant had notice of the complaints against v. Hargrove, 110 S.W.3d 74 (Tex.App.-San Antonio them. Therefore, keeping in mind that expert reports, such as 2003, pet. denied) (same); Kirksey v. Marupudi, No. 07– that of Dr. Edlich, are simply a preliminary method to show 03–0076–CV, 2003 WL 23096028 (Tex.App.-Amarillo a plaintiff has a viable cause of action that is not frivolous or Dec. 30, 2003, no pet.) (mem.op.) (same); Leston v. without expert support, we hold the trial court did not abuse Cwikla, No. 05–02–01712–CV, 2003 WL 22332371 its discretion when it denied appellants' motions to dismiss (Tex.App.-Dallas Oct. 14, 2003, rule 53.7(f) motion based on their complaints that appellees' expert reports were granted)(mem.op.) (same); Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8 (Tex.App.-Tyler 2002, pet. denied) deficient as to the standard of care and causation elements. 11

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Kelly v. Rendon, 255 S.W.3d 665 (2008)

(same); Nichols v. Nacogdoches Hosp. Dist., 96 S.W.3d his final report, Dr. Chen issued a supplemental report on 582 (Tex.App.-Tyler 2002, no pet.) (same); De Leon September 14, 2006. In his September 14, 2006 report, Dr. v. Vela, 70 S.W.3d 194 (Tex.App.-San Antonio 2001, Chen states the reason he issued the supplemental report was pet. denied) (same); Rittmer v. Garza, 65 S.W.3d 718 to “render the final cause of death as complications from (Tex.App.-Houston [14th Dist.] 2001, no pet.) (same); necrotizing fasciitis.” Hightower v. Saxton, 54 S.W.3d 380 (Tex.App.-Waco 2001, no pet.) (same). The remaining cases cited by [24] Houston Northwest argues appellees' expert reports are appellants can be factually distinguished. See CHCA deficient because they did not address each of Dr. Chen's Mainland, L.P. v. Burkhalter, 227 S.W.3d 221 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (appellate court reports and each of his conclusions as to the cause of Ms. reversed holding the trial court abused its discretion Rendon's death. Here, Dr. Chen issued a supplemental report when it denied defendant's motion to dismiss because in which he rendered his final opinion that Ms. Rendon's the plaintiff's expert reports completely failed to address death was caused by complications from necrotizing fasciitis. the hospital defendant's standard of care or the breaches Each of appellees' physician experts noted they reviewed Dr. of those standards); Wells v. Ashmore, 202 S.W.3d Chen's autopsy reports in the preparation of their opinions and 465 (Tex.App.-Amarillo 2006, no pet.) (appellate court addressed necrotizing fasciitis as the cause of Ms. Rendon's reversed holding the trial court abused its discretion death. Houston Northwest does not cite any legal authority when it denied defendant's motion to dismiss because that requires an expert, in a section 74.351 preliminary the plaintiff's expert reports failed to include any facts report, to specifically address every autopsy report found connecting the expert's conclusions with the breaches of in the medical records, particularly reports that have been the standard of care); Methodist Health Care Sys. of San supplanted by later reports. Because appellees' experts Antonio, Ltd. v. Martinez–Partido, No. 04–05–00868– CV, 2006 WL 1627844 (Tex.App.-San Antonio June reviewed Dr. Chen's autopsy reports in the preparation of their 14, 2006, pet. denied) (appellate court reversed holding opinions in this case and addressed the final cause of death, the trial court abused its discretion when it denied necrotizing fasciitis, we hold the reports meet the statutory defendant's motion to dismiss because the plaintiff's requirements. We overrule Houston Northwest's issue on experts were not qualified). appeal based on the autopsy reports. We overrule appellants' issues asserting the trial court abused its discretion when it denied appellants' motions to dismiss VII. Appellants Are Not Entitled To An Award Of Their because appellees' expert reports are deficient as to the Attorney's Fees and Costs standard of care and causation. [25] Dr. Annamaneni contends the trial court abused its discretion when it did not award appellants their reasonable attorney's fees and costs pursuant to section 74.351(b)(1). VI. Were Appellees' Expert Reports Deficient Because Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b)(1). Because They Did Not Address Each Autopsy Report Prepared we have determined the trial court did not abuse its discretion By Dr. Chen? when it denied appellants' motions to dismiss, appellants Houston Northwest complains appellees' expert reports are were not entitled to their reasonable attorney's fees and costs. deficient because they do not address the causes of death We overrule Dr. Annamaneni's issue on appeal contending found in each of the three autopsy reports drafted by Dr. Chen, appellants were entitled to an award of their attorney's fees the pathologist who conducted Ms. Rendon's autopsy. and costs. Dr. Chen conducted an autopsy of Ms. Rendon on November 7, 2004. Subsequent to the actual autopsy, Dr. Chen issued three reports on his findings as a result of that autopsy. CONCLUSION His provisional *681 report was issued the same day the autopsy was conducted. In his provisional report, Dr. Chen Having addressed and overruled all issues raised by opined Ms. Rendon died as the result of multiple occlusive appellants in this appeal, we affirm the trial court's order pulmonary thromboemboli. Dr. Chen's final report was issued denying each appellant's motion to dismiss. on January 19, 2005. In that report, Dr. Chen gave the cause of Ms. Rendon's death as lethal levels of ephedrine. However, despite the classification of the January 19, 2005 report as

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 Kelly v. Rendon, 255 S.W.3d 665 (2008)

255 S.W.3d 665

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

causation opinions. Rules App.Proc., Rule 33.2; Rules of Evid., Rule 103(a)(2). 206 S.W.3d 572 Supreme Court of Texas. 9 Cases that cite this headnote MACK TRUCKS, INC., Petitioner, v. [2] Appeal and Error Elizabeth TAMEZ et. al., Respondent. Necessity of presentation in general Except for fundamental error, appellate courts No. 03–0526. | Argued Oct. 20, are not authorized to consider issues not properly 2004. | Decided Oct. 27, 2006. raised by the parties. | Rehearing Denied Dec. 22, 2006. 26 Cases that cite this headnote Synopsis Background: Survivors of petroleum tanker driver who died [3] Evidence when his truck burst into flames brought action against the Necessity and sufficiency tanker manufacturer, asserting claims for negligence, strict liability, breach of implied warranty, and misrepresentation. In determining whether expert testimony is The 105th District Court, Nueces County, J. Manuel reliable, a court should examine the principles, Banales, J., granted summary judgment for the defendant research, and methodology underlying an manufacturer. The survivors appealed. The Corpus Christi– expert's conclusions. Rules of Evid., Rule 702. Edinburg Court of Appeals, Thirteenth District, 100 S.W.3d 10 Cases that cite this headnote 549, reversed and remanded. Tanker manufacturer appealed.

[4] Evidence Necessity and sufficiency Holdings: The Supreme Court, Phil Johnson, J., held that: When the testimony involves scientific [1] the Court of Appeals could not consider expert's causation knowledge, the expert's conclusions must be testimony from bill of exceptions, and grounded in the methods and procedures of science. Rules of Evid., Rule 702. [2] testimony on causation from post-collision fuel-fed fire Cases that cite this headnote expert was not admissible.

[5] Evidence Reversed and rendered. Necessity and sufficiency Trial court should consider the following factors when determining the reliability of expert West Headnotes (19) testimony involving scientific knowledge; (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies [1] Appeal and Error upon the subjective interpretation of the expert; Consideration of evidence excluded (3) whether the theory has been subjected to peer The Court of Appeals could not consider expert's review and/or publication; (4) the technique's causation testimony from bill of exceptions, in potential rate of error; (5) whether the underlying strict liability and negligence action arising from theory or technique has been generally accepted petroleum tanker fire that allegedly resulted from as valid by the relevant scientific community; defective fuel line, where the Court of Appeals and (6) the non-judicial uses that have been made did not first determine that the trial court erred of the theory or technique. Rules of Evid., Rule when it refused to admit expert's testimony 702. and reconsider its decision to exclude expert's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

of an expert's testimony when doing so will be 12 Cases that cite this headnote helpful in determining reliability of an expert's testimony, regardless of whether the testimony is [6] Evidence scientific in nature or experience-based. Rules of Determination of question of competency Evid., Rule 702. A trial court has broad discretion in determining 17 Cases that cite this headnote whether expert testimony is admissible. Rules of Evid., Rule 702. [11] Evidence 10 Cases that cite this headnote Necessity and sufficiency In determining the reliability of an expert's [7] Appeal and Error testimony, the trial court should undertake a Competency of witness rigorous examination of the facts on which the expert relies, the method by which the expert The trial court's ruling concerning the draws an opinion from those facts, and how the admissibility of expert testimony will be expert applies the facts and methods to the case reversed only if that discretion is abused. at hand. Rules of Evid., Rule 702. 5 Cases that cite this headnote 9 Cases that cite this headnote

[8] Evidence [12] Evidence Preliminary evidence as to competency Automobile Cases Because the party sponsoring the expert bears Testimony on causation from post-collision fuel- the burden of showing that the expert's fed fire expert was not admissible, in strict testimony is admissible, the burden of presenting liability and negligence action arising from understandable evidence that will persuade the petroleum tanker fire that allegedly resulted from trial court to admit the expert's testimony is on defective fuel line; at the hearing to determine the presenting party. Rules of Evid., Rule 702. the admissibility of expert's testimony expert 6 Cases that cite this headnote opined that the fire began in the fuel and battery systems of the tractor, he did not identify an alleged defect in the tractor's fuel system that was [9] Evidence the source of the fire, he did not specify which Necessity and sufficiency studies supported his conclusions, he did not When an expert's processes or methodologies testify that he analyzed or tested characteristics are obscured or concealed by testimony that of batteries like the battery in the wrecked is excessively internally contradictory, non- tractor, and he did not describe the process in responsive or evasive, a trial court will not have which he excluded other sources of ignition. abused its discretion in determining that the Rules of Evid., Rule 702. expert's testimony is not admissible. Rules of Evid., Rule 702. 4 Cases that cite this headnote

3 Cases that cite this headnote [13] Products Liability Proximate Cause [10] Evidence Products Liability Necessity and sufficiency Design A trial court should consider the factors Products Liability mentioned in E.I. du Pont de Nemours and Co. Miscellaneous products v. Robinson for determining the admissibility Sales

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

Damages from breach that alleged defects caused diesel fuel leak in There was no evidence that alleged defects in tanker and that leak caused by the defect was petroleum tanker's fuel system, which allegedly ignition point for fire that occurred in connection caused diesel fuel leak, caused fire that with accident; such causation issues presented occurred in connection with tanker accident, as matters beyond the general understanding and required to support claims asserted against tanker common knowledge of lay jurors. manufacturer by survivors of tanker driver, 16 Cases that cite this headnote alleging negligence, misrepresentation, breach of warranty, and design, manufacturing, and marketing defects. [18] Judgment Torts 4 Cases that cite this headnote Expert testimony that an arced battery cable found in tractor of petroleum tanker could [14] Evidence possibly have ignited fire that occurred in Particular Facts or Issues connection with tanker accident, offered in Proof other than expert testimony will constitute opposition to tanker manufacturer's motion some evidence of causation only when a for summary judgment in strict liability and layperson's general experience and common negligence action by driver's survivors alleging understanding would enable the layperson to design defects, was speculative, and thus determine from the evidence, with reasonable insufficient to prevent summary judgment, since probability, the causal relationship between the expert did not testify that battery or its cable event and the condition. probably ignited the fire, and expert could not determine whether cable arced before the fire 24 Cases that cite this headnote was ignited or as it was being burned by an otherwise-ignited fire. [15] Evidence 24 Cases that cite this headnote Weight and Conclusiveness in General Expert testimony is required when an issue [19] Judgment involves matters beyond jurors' common Torts understanding. Circumstantial summary judgment evidence 12 Cases that cite this headnote suggesting that fire that occurred in connection with petroleum tanker accident quickly reached tanker driver, though consistent with theory [16] Trial asserted by driver's survivors, in strict Province of Court and Jury liability and negligence action against tanker Whether expert testimony is necessary to prove manufacturer, that fire originated with fuel a matter or theory is a question of law. from tractor's allegedly defective diesel fuel 3 Cases that cite this headnote system, did not make it more likely than not that the battery or some other allegedly improperly located ignition source ignited [17] Products Liability diesel from the tractor, as opposed to Trailers other possible sources of ignition such as Products Liability the cargo of crude oil, and thus such Design defect evidence was insufficient to preclude summary Expert testimony was required, in design defect judgment for manufacturer in survivors' action action brought by survivors of petroleum tanker alleging negligence, misrepresentation, breach driver against tanker manufacturer, to establish

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

of warranty, and design, manufacturing, and Abram Tamez. Specifically, the Tamezes alleged that the marketing defects. tractor had design and manufacturing defects because (1) the fuel system was unreasonably prone to fail and release 209 Cases that cite this headnote diesel fuel in an environment conducive to ignition and fire; and (2) the tractor had ignition sources *576 such as hot manifolds and electric batteries in areas likely to contain released flammable fluids. The Tamezes also alleged that Attorneys and Law Firms Mack failed to provide warnings about the defects.

*575 Sean E. Breen, Randy Howry, Herman Howry & 1 Elizabeth Tamez filed suit. Elsa Guerrero, Rosendo Breen, L.L.P., Austin, Robert Lee Galloway, Kellye Ruth Tamez, Sr., Dora Tamez, Rosa Elvia Gonzales, Donna Koehn, Thompson & Knight LLP, Houston, for petitioner. Kim Cantu, and Terrie L. Zay intervened. Rosa John Blaise Gsanger, William R. Edwards, William R. subsequently nonsuited. For ease of reference all the claimants will be referred to collectively as “the Edwards III, The Edwards Law Firm, L.L.P., Corpus Christi, Tamezes” or “the plaintiffs.” John Gonzales, John Gonzales & Associates, San Antonio, David O. Gonzalez, Law Offices of Baldemar Gutierrez, 2 Other defendants were Fruehauf Trailer Corporation, Alice, Glenn M. Boudreaux, Maryellen Hester, Boudreaux Norco Crude Gathering, Inc., Glitsch Canada, Ltd., and Leonard & Hammond, P.C., Houston, for for respondent. Snyder Tank Corp. The claims against those defendants were either nonsuited or settled and were severed from Opinion the claims against Mack.

Justice JOHNSON delivered the opinion of the Court. In connection with its claims against Mack, the Tamezes identified Ronald Elwell as an expert on post-collision, fuel- In this truck accident case the trial court excluded expert fed fires. Mack moved to exclude his testimony as unreliable testimony as to what caused a post-accident fire that burned and moved for summary judgment. Mack asserted multiple the truck and the driver. After excluding the expert testimony grounds for seeking summary judgment. Some grounds for because it was not reliable, the trial court granted summary its motion were directed at particular plaintiffs, while some judgment. The court of appeals reversed. We hold that the grounds were directed at all the Tamezes. One part of Mack's trial court did not err, reverse the court of appeals' judgment, motion directed at all the Tamezes was a Rule 166a(i) motion and render judgment that the plaintiffs take nothing. urging that the Tamezes could present no evidence that any alleged defects caused the fire. The Tamezes responded to the no-evidence part of Mack's motion, in part, by filing Elwell's deposition and his expert report. They also later submitted I. Background Elwell's testimony from a bill of exceptions. On October 19, 1996, Abram Tamez was operating a Mack Truck tractor hauling a trailer of crude oil. Tamez was Pretrial matters, including a Robinson 3 hearing pursuant to rounding a curve in the road when the tractor and trailer Mack's motion to exclude Elwell's testimony, were scheduled overturned. A fire erupted and burned the trailer, its cargo, and heard. During the Robinson hearing Elwell testified. He and the tractor. Tamez was able to climb out of the tractor, expressed the opinion that the fire was started by the tractor's but he was badly burned and died as a result of his injuries. battery, which was located too near the fuel tanks, igniting the tractor's diesel fuel, which in turn ignited the trailer's cargo As a result of Tamez's death, suit was filed 1 against the of crude oil.

tractor's manufacturer, Mack Trucks, Inc., and others. 2 3 E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d The Tamezes alleged that Mack defectively designed, manufactured and marketed the tractor. They claimed that 549 (Tex.1995). Mack was liable for negligence, gross negligence, strict The trial court granted Mack's motion to exclude Elwell's products liability, breach of warranty, and misrepresentation. testimony as to causation. The Tamezes later moved the All five theories were based on the same complaint: diesel trial court to reconsider its decision. The court denied the fuel from the truck's fuel system originated the fire that burned motion but allowed the Tamezes to have Elwell testify again

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

to create a bill of exceptions. 4 The court signed an order excluding the causation portion of Elwell's testimony from II. Elwell's Bill of Exceptions Testimony being considered as evidence at any trial or hearing because it was not sufficiently reliable. Mack's motion for summary [1] Mack argues that the court of appeals erred by judgment was granted. considering testimony admitted only for the bill when it reviewed the trial court's exclusion of Elwell's causation 4 An offer of proof is sometimes referred to as a bill of testimony. The Tamezes claim that whether Elwell's bill of exceptions. See TEX.R. EVID. 103(a)(2); TEX.R.APP. exceptions testimony is considered is not relevant because P. 33 (comment to 1997 change). As the court of appeals his bill testimony added nothing to his Robinson hearing and the parties refer to the offer of proof in this case as testimony. Further, in their brief and at oral argument the a bill of exceptions, we will, also. Tamezes disclaim having urged in the court of appeals that The court of appeals reversed the summary judgment, the trial court erred in (1) holding a Robinson hearing, (2) the concluding that the trial court abused its discretion manner in which the hearing was conducted, (3) the timing of the hearing, or (4) denying their motion for reconsideration. in excluding Elwell's causation testimony, 5 and also Our review of their briefs in the court of appeals confirms the concluding that Elwell's testimony provided some evidence Tamezes' position. They do not contend here either that the of causation. The court of appeals' opinion indicates that in bill of exceptions testimony was improperly excluded or that reaching its decision it considered Elwell's testimony from the trial court erred in denying their motion to reconsider. both the Robinson hearing and the bill of exceptions. See 100 S.W.3d 549, 556, 559, 561. The purpose of a bill of exceptions is to allow a party to make a record for appellate review of matters that do not otherwise 5 After Elwell's expert testimony was excluded by the appear in the record, such as evidence that was excluded. trial court, the Tamezes obtained testimony from another TEX. R. APP. P. 33.2; TEX. R. EVID. 103(a)(2); see also expert witness, Douglas Holmes. Mack moved to In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998). The exclude Holmes's testimony, and the trial court orally court of appeals' opinion indicates that it considered Elwell's granted the motion. The court of appeals upheld the bill of exceptions testimony in evaluating the admissibility exclusion of Holmes's testimony. 100 S.W.3d 549, 559. of his opinions even though the trial court did not. See 100 The Tamezes do not challenge the court of appeals' ruling as to Holmes. S.W.3d at 556, 559. As one example, the court of appeals referenced Elwell's opinion that at least one of the tractor's Mack urges that the trial court correctly excluded Elwell's side fuel tanks became displaced during the rollover and testimony on causation, did not abuse its discretion in separated the balance line connecting the two fuel tanks. Id. refusing to reconsider that ruling, and properly granted at 557. The court pointed to Elwell's testimony interpreting summary judgment because the Tamezes presented no photographic evidence of steel straps which held the tanks as evidence of causation. Mack asserts, among other matters, support for his opinion. Id. The referenced testimony as to that the court of appeals erred by (1) considering Elwell's Elwell's opinion and interpretation of photographic evidence causation testimony from both the Robinson hearing and was given as part of his bill of exceptions testimony, but he the bill of exceptions; (2) reversing the trial court's ruling did not give similar testimony during the Robinson hearing. as to admissibility of Elwell's causation testimony; and (3) reversing the summary judgment. [2] Except for fundamental error, appellate courts are not authorized to consider issues not properly raised by the We conclude that the trial court did not abuse its discretion parties. See In the Interest of B.L.D., 113 S.W.3d 340, in excluding Elwell's testimony on causation and that the 350–52 (Tex.2003). We have described fundamental error court *577 of appeals erred in considering testimony from as those instances in which error directly and adversely the bill of exceptions in evaluating the trial court's exclusion affects the interest of the public generally, as that interest of Elwell's causation testimony. We further conclude that is declared by the statutes or Constitution of our State, or the Tamezes presented no summary judgment evidence of instances in which the record affirmatively and conclusively causation and summary judgment was properly granted. shows that the court rendering the judgment was without jurisdiction of the subject matter. See McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

The court of appeals did not classify the trial court's refusal opinion proffered.’ ” Gammill, 972 S.W.2d at 726 (quoting to allow the Tamezes to present further evidence and to then Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, reconsider its ruling to exclude Elwell's causation testimony 139 L.Ed.2d 508 (1997)). as fundamental error, and neither do we. The court of appeals erred in considering Elwell's causation testimony from the 6 Id. (identifying the following considerations regarding bill of exceptions without having first determined, pursuant reliability of scientific testimony: (1) the extent to to properly assigned error, that the trial court erred in refusing which the theory has been or can be tested; (2) the to admit the testimony and reconsider its decision to exclude extent to which the technique relies upon the subjective Elwell's causation opinions. Under the record and issues interpretation of the expert; (3) whether the theory presented to us, we may not consider Elwell's testimony has been subjected to peer review and/or publication; from the bill of exceptions in determining whether the trial (4) the technique's potential rate of error; (5) whether court erred in excluding Elwell's causation *578 testimony. the underlying theory or technique has been generally See Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 n. 1 accepted as valid by the relevant scientific community; and (6) the non-judicial uses that have been made of the (Tex.2004). theory or technique). [6] [7] [8] [9] A trial court has broad discretion in determining whether expert testimony is admissible. Zwahr, III. Reliability of Elwell's Testimony 88 S.W.3d at 629. Its ruling will be reversed only if that discretion is abused. K–Mart Corp. v. Honeycutt, 24 S.W.3d A. Standard of Review 357, 360 (Tex.2000). Because the party sponsoring the expert bears the burden of showing that the expert's testimony is [3] [4] [5] An expert witness may testify regarding admissible, the burden of presenting understandable evidence “scientific, technical, or other specialized” matters if the that will persuade the trial court is on the presenting party. See expert is qualified and if the expert's opinion is relevant and Robinson, 923 S.W.2d at 557. When an expert's “processes” based on a reliable foundation. TEX. R. EVID. 702; Helena or “methodologies” are obscured or concealed by testimony Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); that is excessively internally contradictory, non-responsive or Robinson, 923 S.W.2d at 556. In determining whether evasive, a trial court will not have abused its discretion in expert testimony is reliable, a court should examine “the determining that the expert's testimony is not admissible. See principles, research, and methodology underlying an expert's GMC v. Iracheta, 161 S.W.3d 462, 470–72 (Tex.2005). conclusions.” Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.2002). When the testimony involves scientific knowledge, the expert's conclusions must be “grounded ‘in the methods and procedures of science.’ ” Robinson, B. Reliability Factors 923 S.W.2d at 557 (quoting Daubert v. Merrell Dow The court of appeals noted that Elwell's testimony largely Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 applied his knowledge, training, and experience to the L.Ed.2d 469 (1993)). Otherwise, the testimony is “no more underlying data and that his methodology was not easily than ‘subjective belief or unsupported speculation.’ ” Id. tested by objective criteria such as identifiable scientific (quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786). We formulas. The court of appeals concluded that under such have identified several non-exclusive factors that trial courts circumstances *579 the reliability of Elwell's opinion is not should consider when determining the reliability of expert properly measured by a Robinson-factor analysis, but that the testimony involving scientific knowledge. 6 We recognize “analytical gap” test should be applied. 100 S.W.3d at 555– that these factors may not apply when testimony is not 56. scientific, but, rather, involves technical or other specialized knowledge. Gammill v. Jack Williams Chevrolet, 972 S.W.2d Mack argues that the court of appeals' analysis is flawed. 713, 726 (Tex.1998). Even then, however, there must be some Mack urges that Elwell's inability to demonstrate at least one basis for the opinion to show its reliability. Id. An expert's of the Robinson factors, coupled with his inability to eliminate bare opinion will not suffice. Merrell Dow Pharms., Inc. v. the crude oil tanker as the source of the fire, rendered Elwell's Havner, 953 S.W.2d 706, 711 (Tex.1997). And, there cannot testimony unreliable. The Tamezes, on the other hand, argue be “ ‘too great an analytical gap between the data and the that because Elwell's testimony was based on his training and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

experience, and not science, application of the analytical gap and determine which factors and evaluation methodology test, as opposed to use of Robinson factors, was appropriate. are most appropriate to apply. For example, in the present They contend that Elwell's opinion was reliable because there case the trial court would have been within its discretion were no analytical gaps in his testimony. See Gammill, 972 to measure the reliability of Elwell's testimony, at least in S.W.2d at 726. part, by considering (1) the extent to which Elwell's theory had been or could be tested; (2) the extent to which his In Gammill we clarified that the list of non-exclusive factors methodology relied upon his subjective interpretation; (3) listed in Robinson may not be applicable when assessing the methodology's potential rate *580 of error; (4) whether certain kinds of expert testimony. 972 S.W.2d at 720. We the underlying theory or methodology has been generally held that Robinson factors did not apply to the mechanical accepted as valid by the accident reconstruction and post- engineer expert under consideration in Gammill, even though collision fire investigation community; and (5) the non- his claimed expertise was scientific in nature. Id. at 727. In so judicial uses that have been made of his methodology. These holding, however, we did not mean to imply that a trial court are similar to factors 1, 2, 4, 5 and 6 of those enumerated in should never consider the Robinson factors when evaluating Robinson. But, as we have said above, that is not to imply the reliability of expert testimony that is based on knowledge, that the trial court was precluded from measuring Elwell's training or experience, or that the factors can only be applied methodology by Gammill's analytical gap analysis. when evaluating scientific expert testimony. We recognized that the criteria for assessing reliability must vary depending on the nature of the evidence. Id. at 726. C. Elwell's Causation Testimony

[10] The United States Supreme Court has noted that it [12] At the Robinson hearing, Elwell testified that the fuel is not possible to “rule out, nor rule in, for all cases and and battery system on the tractor were designed improperly, for all time the applicability of the factors mentioned in and suggested safer designs. He criticized the placement of Daubert.” Kumho Tire v. Carmichael, 526 U.S. 137, 150, the fuel tanks and also of the batteries' 7 proximity to the fuel 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Nor can the Court tanks. He criticized certain parts of the fuel system such as the “now do so for subsets of cases categorized by category crossover or “balance line” hose between the two fuel tanks of expert or by kind of evidence,” as “[t]oo much depends and the spigots by which the hose was attached to each of upon the particular circumstances of the particular case at the tanks. He referenced a particular report, which was not issue.” Id. In Robinson we likewise explained that the factors introduced, which he asserted supported his design critiques mentioned do not constitute an exclusive list and that the trial and his suggested safer designs. court's gatekeeping inquiry will differ with each particular case depending on the “[t]he factors a trial court will 7 The record is not clear whether the tractor had one battery find helpful in determining whether the underlying theories or two. and techniques ... are scientifically reliable.” Robinson, 923 S.W.2d at 557. Thus, a trial court should consider the factors Elwell's analysis and conclusion that the fire began with mentioned in Robinson when doing so will be helpful in the fuel system and the battery system were based on determining reliability of an expert's testimony, regardless of the “fire triangle” theory. He explained that under the fire whether the testimony is scientific in nature or experience- triangle theory, a post-collision fuel-fed fire such as the one based. See Kumho Tire, 526 U.S. at 139, 119 S.Ct. 1167; under consideration must be analyzed with an eye toward Gammill, 972 S.W.2d at 726. the ignition, fuel, and oxygen sources that were available. Because the air provided oxygen, his analysis centered on the [11] In determining reliability, the trial court “should other parts required to complete the triangle, “the source of undertake a rigorous examination of the facts on which the fluids that could be ignited and what would it take to ignite expert relies, the method by which the expert draws an those fluids and fuel, of course, is the primary suspect, either opinion from those facts, and how the expert applies the facts fuel or crude oil in this particular case.” and methods to the case at hand.” See Amorgianos v. Amtrak, 303 F.3d 256, 267 (2d Cir.2002). A significant part of the He did not testify that he inspected the remnants of the trial court's gatekeeper function is to evaluate the expert's burned tractor and trailer or that he performed or reviewed qualifications, listen to the testimony, view the evidence, any accident reconstruction analysis as to how the rollover

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

occurred and how different parts of the vehicle would have ignition or flash points of the crude and diesel fuel. He did not been affected or harmed thereby. His Robinson hearing address any analysis or process by which he concluded that testimony did not identify a particular alleged defect of the some part of a trailer of crude oil would continue to burn for tractor's fuel system that he concluded was the source of a several minutes only if it was ignited by, rather than being the diesel fuel leak that initiated the fire. ignitor of, diesel fuel from the tractor's fuel system.

On cross-examination he testified that he had read and relied In sum, Elwell did not testify at the Robinson hearing to on “over 5,000” studies on the subject of the causes of post- a methodology by which he reached the conclusions as collision fuel-fed fires. He did not specify any studies that to the fire having been caused by defects in the tractor's supported his conclusion as to the specifics involved in the fuel and battery systems. In order for Elwell's testimony on accident, and none were offered as evidence for the trial court causation to be reliable, he was required to present some to consider in evaluating his testimony. methodology that reliably supported his opinions that the “fuel” and “ignition” parts of the fire triangle were supplied, In coming to his conclusion that the fire began with the fuel respectively, by the tractor's alleged fuel system defects and system and battery system of the tractor, Elwell asserted that battery system. He did not do so. The mere fact that the fuel he relied on several specific factors and facts. Each of the system had a design that could cause the hoses to separate is factors and facts he enumerated supported conclusions that not evidence that the hoses separated in this case. Tamez was burned by diesel and that the diesel ignited so quickly that Tamez could not escape. Elwell's testimony did no more than set out “factors” and “facts” which were consistent with his opinions, then Even assuming that what Elwell relied on and classified as conclude that the fire began with diesel fuel from the tractor. “factors” and “facts” were true, however, which Mack denies, The reliability inquiry as to expert testimony does not ask the factors and facts are merely consistent with diesel fuel whether the expert's conclusions appear to be correct; it asks having been released during the rollover and Tamez having whether the methodology and analysis used to reach those been burned by part of the fire fed by the tractor's diesel fuel. conclusions is reliable. Kerr–McGee Corp. v. Helton, 133 They are not probative evidence that diesel fuel was released S.W.3d 245, 254 (Tex.2004). The trial court was not required because of one of the asserted defects in the fuel system or to accept his opinions at face value just because Elwell was that it was ignited by the battery system. He did not testify experienced in examining post-collision fuel-fed fires. See to having analyzed, tested, or investigated the characteristics Gammill, 972 S.W.2d at 726 (holding that a court should not of batteries like the battery in the wrecked tractor to support admit opinion evidence which is connected to existing data his *581 opinion that the battery system was involved in only by the ipse dixit of the expert). causing the fire. He failed to set out any process by which he excluded other sources for ignition of the diesel fuel such We conclude that the trial court did not abuse its discretion as mechanical sparks which could be generated when parts when it excluded Elwell's testimony on causation. The court of a truck make contact with the pavement, or ignition of the of appeals erred when it determined otherwise. cargo fuel which in turn could have ignited the diesel fuel. See Gammill, 972 S.W.2d at 728; see also Robinson, 923 S.W.2d at 559 (noting that an expert who is trying to find a cause IV. The Summary Judgment of something should carefully consider alternative causes). For example, when Elwell was asked during the Robinson Mack moved for summary judgment on multiple grounds, hearing why he concluded that the fire originated with the including the ground that there was no evidence Mack's fuel fuel and battery systems instead of with the crude oil cargo, system design was a producing or proximate cause of Tamez's his response was that “if [crude oil] remains to be burned, injuries. The Tamezes contend that even without Elwell's that after five or ten or fifteen minutes, then that's not the testimony as to causation, they presented sufficient evidence fuel that started the fire.” He did not explain any investigation to survive summary judgment. or research that supported such a conclusion. He did not elaborate on the amount of crude that was in the trailer when the wreck occurred, calculate the amount of time it would take the cargo to burn, or discuss or compare the relative ease of A. Standard of Review

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

A summary judgment motion pursuant to TEX. R. CIV. P. See Iracheta, 161 S.W.3d at 470 (holding that the possibility 166a(i) is essentially a motion for a pretrial directed verdict. that the fire occurred in the manner the plaintiff suggested is See *582 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d not enough to support the jury's findings); Nissan Motor Co. 706, 711 (Tex.1997). Once such a motion is filed, the burden v. Armstrong, 145 S.W.3d 131, 137 (Tex.2004). shifts to the nonmoving party to present evidence raising an issue of material fact as to the elements specified in The Tamezes point to several parts of their summary the motion. Id.; W. Invs., Inc. v. Urena, 162 S.W.3d 547, judgment evidence that they say are sufficient, individually 550 (Tex.2005). We review the evidence presented by the or collectively, to defeat summary judgment: (1) an accident motion and response in the light most favorable to the party witness's “personal assumption,” based on his averred against whom the summary judgment was rendered, crediting experience with and ability to recognize the smell of diesel evidence favorable to that party if reasonable jurors could, fuel, that Tamez was burned by diesel fuel because Tamez and disregarding contrary evidence unless reasonable jurors was coated with a shiny, oily substance and did not smell like could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 crude oil; (2) a notation by Mack's accident reconstruction (Tex.2005); Johnson v. Brewer & Pritchard, P. C., 73 S.W.3d expert noting a diesel fuel spill on the road; (3) a statement by 193, 208 (Tex.2002). Elwell that the design of the system was such that if there was any significant dislodgement of the fuel tanks, the fuel line would separate; 8 (4) a statement by Mack's expert witness B. Causation that it was possible that a battery cable found in the tractor had arced and ignited the fire, although *583 the witness Producing or proximate cause is an element of all ultimately concluded that the crude-oil cargo caused the fire; of the Tamezes' claims, which included negligence, and (5) an eyewitness's statement implying that it took the fire misrepresentation, breach of warranty, and design, a short period of time to reach Tamez, who exited and crawled manufacturing, and marketing defects. Causation-in-fact is away from the tractor after the accident. common to both proximate and producing cause, including the requirement that the defendant's conduct or product be a 8 Elwell's testimony on design defect, as opposed to his substantial factor in bringing about the injuries in question. testimony on causation, was not excluded. See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 [14] [15] [16] Proof other than expert testimony (Tex.1995). will constitute some evidence of causation only when a layperson's general experience and common understanding All the Tamezes' theories regarding the fire's cause would enable the layperson to determine from the evidence, were based on allegations that the tractor's fuel system with reasonable probability, the causal relationship between was defectively designed and manufactured so as to be the event and the condition. Expert testimony is required unreasonably prone to fail and release flammable fluids in when an issue involves matters beyond jurors' common an environment conducive to ignition and fire; that such understanding. See Alexander v. Turtur & Assocs., 146 defects caused the release of diesel fuel; and that a defectively S.W.3d 113, 119–20 (Tex.2004). Whether expert testimony designed and placed ignition source then caused ignition of is necessary to prove a matter or theory is a question of law. the released diesel. See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 89 (Tex.2004). In Fulgham we held that expert testimony [13] To survive summary judgment on their theory that was necessary to establish the standard of care for connecting a defect in the tractor's fuel system was the cause of refrigerated trailers to tractors and for the frequency and type the fire, the Tamezes were required to present more than of inspection and maintenance of such connectors, because evidence of a fuel leak. See Ford Motor Co. v. Ridgway, those matters were not within the general experience and 135 S.W.3d 598, 600–01 (Tex.2004) (affirming summary common understanding of laypersons. Id. at 91; See also judgment because the plaintiffs' evidence “establishe[d] only Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.- that a fire occurred, and [the plaintiffs' expert] could say no Amarillo 1999, pet. denied) (holding that performance of more than that he ‘suspects' the electrical system caused the mechanical work on turbine aircraft engines is not within the fire”). They had to present evidence that (1) the diesel fuel experience of a layperson). leaked because of one or more of the alleged defects, and (2) the leak caused by the defect was the ignition point for the fire.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80

cable could possibly have ignited the fire is not evidence that [17] A lay juror's general experience and common it probably did so. The expert who provided this testimony knowledge do not extend to whether design defects such as could not determine whether the cable arced before the fire those alleged in this case caused releases of diesel fuel during was ignited or as it was being burned by an otherwise-ignited a rollover accident. See Nissan Motor Co., 145 S.W.3d at fire. As proof of what caused the fire, such evidence is 137 (stating that we have consistently required competent speculative and is insufficient to prevent summary judgment. expert testimony and objective proof that a defect caused the See Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 condition complained of). Nor would a lay juror's general (Tex.1998). experience and common knowledge extend to determining which of the fire triangle's fuel sources, diesel from the *584 [19] The plaintiffs also rely on circumstantial tractor or crude from the tanker, would have first ignited, evidence suggesting that the fire quickly reached Tamez. That or the source for the first ignition. That part of Elwell's evidence is consistent with the Tamezes' theory that the fire testimony that was properly before the trial court and the originated with fuel from the tractor's diesel fuel system. But, testimony of other experts as to the amount of time they such evidence does not make it more likely than not that the spent in studying, investigating, and working in the field of battery or some other allegedly improperly located ignition post-collision, fuel-fed fires demonstrated the intricacies of source ignited diesel from the tractor, as opposed to other such subject matter. Issues such as those regarding the fire's possible sources of ignition such as the cargo of crude oil. cause(s) present matters beyond the general understanding Accordingly, the circumstantial evidence is not sufficient to and common knowledge of lay jurors. Proof of causation in prevent summary judgment. Id. this case also required expert testimony.

The summary judgment evidence presented by the Tamezes did not contain proof that any of the possible sources of diesel V. Conclusion fuel was more likely than any other, or more likely than the crude oil cargo, to have been the source of liquids that first The plaintiffs produced no evidence that the alleged defects caught fire. Accordingly, there is no evidence that the source of the Mack tractor were a cause-in-fact of injuries to Abram was one of the alleged fuel system defects. Kindred v. Con/ Tamez. Because causation is a required element of each of Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). the Tamezes' claims, the trial court properly granted summary judgment. Accordingly, we reverse the court of appeals' [18] The Tamezes also alleged that several ignition sources judgment and render judgment that the plaintiffs take nothing. were located in areas likely to contain diesel that would be released in a wreck. The Tamezes point to expert testimony All Citations that an arced battery cable found in the tractor could possibly have ignited the fire. But, testimony that the battery or its 206 S.W.3d 572, 50 Tex. Sup. Ct. J. 80

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Rittger v. Danos, 332 S.W.3d 550 (2009)

332 S.W.3d 550 Affirmed. Court of Appeals of Texas, Houston (1st Dist.).

Kevin RITTGER, M.D., Appellant, West Headnotes (14) v. Virginia Lou DANOS, Individually and as Next [1] Health Friend of Ryan Cochran, a Minor, Appellees. Affidavits of merit or meritorious defense; No. 01–08–00588–CV. | June 18, expert affidavits 2009. | Rehearing Overruled July 17, 2009. In reviewing whether an expert report complies with the Medical Liability and Insurance Synopsis Improvement Act, the court evaluates whether Background: Patient, individually and on behalf of newborn the report represents a good-faith effort to child, brought medical malpractice action against emergency comply with the Act, and in making this room physician and obstetrician, based on defendants' failure evaluation, the court must look only at the to timely diagnose stroke when she, while pregnant, presented information that is contained within the four to emergency room with numbness in right arm. The 55th corners of the report. V.T.C.A., Civil Practice & District Court, Harris County, Jeffrey Brown, J., granted Remedies Code § 74.351(a). emergency room physician's motion to dismiss on grounds that expert reports did not comply with Medical Liability Cases that cite this headnote and Insurance Information Act, and patient appealed. The Court of Appeals, 253 S.W.3d 294, affirmed. On review, the [2] Health Supreme Court, 253 S.W.3d 215, reversed judgment of The Affidavits of merit or meritorious defense; Court of Appeals, and remanded matter back to District Court. expert affidavits On remand, the District Court, Jeffrey A. Shadwick, J., denied Although an expert's report pursuant to the physician's motion to dismiss, and physician appealed. Medical Liability and Insurance Information Act need not marshall all the plaintiff's proof, it must include the expert's opinions on the three Holdings: The Court of Appeals, George C. Hanks, Jr., J., statutory elements-standard of care, breach, and held that: causation. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6). [1] expert obstetrician was not required to submit separate expert reports for emergency room physician and pregnant Cases that cite this headnote patient's obstetrician who owed patient same standard of care; [3] Health [2] expert emergency room physician's report provided Affidavits of merit or meritorious defense; defendant emergency room physician with adequate notice of expert affidavits what standard of care was and what action defendant should In order to constitute a good faith effort to have taken; comply with the Medical Liability and Insurance Information Act, an expert's report must provide [3] expert neurologist's report was not merely conclusory on enough information to fulfill two purposes: first, issue of causation of pregnant patient's stroke; and the report must inform the defendant of the specific conduct the plaintiff has called into [4] board-certified neurologist was qualified to give expert question; and second, the report must provide a opinion regarding applicable standard of care for pregnant basis for the trial court to conclude that the claims emergency room patient who presented with numbness in right arm.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Rittger v. Danos, 332 S.W.3d 550 (2009)

have merit. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6). 5 Cases that cite this headnote

Cases that cite this headnote [7] Health Affidavits of merit or meritorious defense; [4] Health expert affidavits Affidavits of merit or meritorious defense; An expert's report under the Medical Liability expert affidavits and Insurance Information Act is not required to An expert report that merely states the expert's specifically state the same standard of care for conclusions as to the standard of care, breach, each individual defendant physician practicing and causation does not constitute a good faith on the same patient when each physician owes effort to comply with the Medical Liability the same duties to the patient. V.T.C.A., Civil and Insurance Information Act; the expert must Practice & Remedies Code § 74.351(r)(6). explain the basis for his statements and link his conclusions to the facts. V.T.C.A., Civil Practice 2 Cases that cite this headnote & Remedies Code § 74.351(r)(6). [8] Health Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits [5] Health Expert emergency room physician's report Affidavits of merit or meritorious defense; provided defendant emergency room physician expert affidavits with adequate notice of what standard of In assessing an expert report's sufficiency, for care was and what action defendant should the purposes of determining whether the report have taken when presented with pregnant complies with the requirements for such reports patient who complained of numbness in right under the Medical Liability and Insurance arm, as required to comply with expert Information Act, the trial court may not draw any report requirements under Medical Liability and inferences, and instead must rely exclusively on Insurance Information Act, in patient's action the information contained within the report's four against defendant physician; report indicated corners. V.T.C.A., Civil Practice & Remedies that, upon recognizing high risk of transient Code § 74.351(r)(6). ischemic attack and stroke, defendant should have admitted patient for further evaluation and Cases that cite this headnote treatment. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6). [6] Health Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits Expert obstetrician was not required to submit [9] Health separate expert reports detailing applicable Affidavits of merit or meritorious defense; standard of care, breach of care, and causation expert affidavits with respect to both emergency room physician Expert neurologist's report was not merely and pregnant patient's obstetrician, in patient's conclusory on issue of causation of pregnant suit against both, where both emergency room patient's stroke, for purposes of determining physician and obstetrician owed same duty to whether report complied with requirements patient when she presented to emergency room under Medical Liability and Insurance with numbness in arm. V.T.C.A., Civil Practice Information Act, in patient's action against & Remedies Code § 74.351(r)(6). emergency room physician; expert expressly linked emergency room physician's alleged

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Rittger v. Danos, 332 S.W.3d 550 (2009)

breach of standard of care, specifically, failure of a medical malpractice claim, and that the to admit and treat patient for pregnancy-related report satisfies the statutory requirements of toxemia, to patient's thrombosis. V.T.C.A., Civil the Medical Liability and Insurance Information Practice & Remedies Code § 74.351(r)(6). Act. V.T.C.A., Civil Practice & Remedies Code § 74.401(a). 1 Cases that cite this headnote 1 Cases that cite this headnote [10] Evidence Due care and proper conduct in general [13] Evidence The expert testifying in a medical malpractice Due care and proper conduct in general case need not be a specialist in the particular No definitive guidelines exist for determining branch of the profession for which testimony whether a proffered medical expert witness's is offered; the statute setting out the requisite education, experience, skill, or training qualify qualifications focuses not on the defendant him as an expert to provide an opinion regarding doctor's area of expertise, but on the condition the applicable standard of care, breach of that involved in the claim. V.T.C.A., Civil Practice & care, and causation elements of a medical Remedies Code § 74.401(a). malpractice claim, for the purposes of the Medical Liability and Insurance Information Cases that cite this headnote Act. V.T.C.A., Civil Practice & Remedies Code § 74.401(a). [11] Evidence Cases that cite this headnote Due care and proper conduct in general Board-certified neurologist was qualified to give expert opinion regarding applicable standard of [14] Evidence care for pregnant emergency room patient who Due care and proper conduct in general presented with numbness in right arm, in medical Where a particular subject of inquiry is common malpractice action brought against emergency to and equally developed in all fields of practice, room physician; neurologist had knowledge of and the prospective medical expert witness standard of care for brain trauma, and treatment has practical knowledge of what is usually of patients with brain trauma was common in and customarily done by a practitioner under field of neurology, and fact that patient was circumstances similar to those which confronted pregnant when she suffered stroke or was in the practitioner charged with malpractice, the emergency room did not require expert to be witness is qualified to testify. V.T.C.A., Civil either emergency room physician or obstetrician. Practice & Remedies Code § 74.401(a). V.T.C.A., Civil Practice & Remedies Code § 74.401(a). 2 Cases that cite this headnote

4 Cases that cite this headnote

[12] Evidence Attorneys and Law Firms Preliminary evidence as to competency *553 Jeffrey H. Uzick, Uzick, Oncken, Scheuerman & Health Berger, P.C., Houston, TX, for Appellant. Affidavits of merit or meritorious defense; expert affidavits Joshua Paul Davis, Youngdahl & Citti, P.C., Houston, TX, The expert's proponent has the burden to for Appellee. show that their expert is qualified to give an Panel consists of Justices KEYES, HANKS, and BLAND. opinion on the applicable standard of care, breach of that care, and causation elements

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Rittger v. Danos, 332 S.W.3d 550 (2009)

found that, section 74.351(c) did not permit Danos to serve a report from a new expert. The trial court dismissed Danos's OPINION case and awarded Rittger $10,000 in attorney's fees.

GEORGE C. HANKS, JR., Justice. 1 All defendants except Rittger were eventually nonsuited.

In this interlocutory appeal, appellant, Kevin Rittger, M.D., 2 Section 74.351(a) provides as follows: challenges the trial court's order denying his motion to dismiss In a health care liability claim, a claimant shall, the medical malpractice claims made against him by appellee, not later than the 120th day after the date the Lou Virginia Danos, individually and as next friend of Ryan original petition was filed, serve on each party Cochran, a minor. In his sole issue, Rittger contends that the or the party's attorney one or more expert report, trial court erred by not dismissing the suit on the ground with a curriculum vitae of each expert listed in the that Danos submitted expert reports that did not satisfy the report for each physician or health care provider requirements of Chapter 74 of the Texas Civil Practice and against whom a liability claim is asserted. The date for serving the report may be extended by written Remedies Code. We affirm. agreement of the affected parties. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any I. Background objection to the sufficiency of the report not later than the 21st day after the date it was served, failing On May 30, 2003, Danos, who was 28–weeks pregnant with which all objections are waived. her second child, went to St. John Hospital's emergency TEX. CIV. PRAC. & REM.CODE ANN. § room complaining of right arm numbness. Rittger, the 74.351(a) (Vernon Supp. 2008). emergency room physician, obtained a CT scan of her 3 Section 74.351(c) provides: “[i]f an expert report has not head and called for a consultation by Danos's obstetrician, been served within the period specified by Subsection (a) Dr. Victor Patel. Dr. Patel evaluated Danos and ordered a because elements of the report are found deficient, the neurological examination. Before the scheduled neurological court may grant one 30–day extension to the claimant in exam could take place, Patel discharged Danos with a order to cure the deficiency.” See id. § 74.351(c). diagnosis of “generalized anxiety.” Two days later, Danos Danos appealed the dismissal of her case to this court, and a went to Memorial Hermann Hospital with weakness of her panel of this court affirmed the judgment of the trial court. right upper and lower extremities. Medical Professionals Danos v. Rittger, 253 S.W.3d 294, 295 (Tex.App.-Houston there found that she had experienced a left middle cerebral [1st Dist.] 2007, pet. granted). The Supreme Court reversed, artery (“MCA”) stroke due to a clot at the bifurcation of the holding that section 74.351(a) allows a claimant to cure a left MCA. deficiency in a report by serving a report from a separate expert during the 30–day cure period. Danos v. Rittger, 253 Danos sued Rittger and other healthcare providers for medical S.W.3d 215 (Tex.2008). The Supreme Court remanded the negligence. 1 Pursuant to section 74.351 of the Texas Civil case to the trial court to consider the adequacy of Dr. Meyer's Practice and Remedies Code, 2 Danos timely *554 filed expert report. Id. at 215–16. Following an oral hearing, expert reports from Dave David, M.D., an obstetrician, the trial court denied Rittger's motion to dismiss, and this and Frank Baker, M.D., an emergency room physician. Dr. interlocutory appeal followed. David's report did not address the care provided by Rittger. Rittger objected to the sufficiency of Baker's report and On appeal, Rittger reasserts his challenges to the adequacy moved to dismiss. The trial court ruled that the report did of the plaintiff's expert reports, claiming that the reports of not comply with section 74.351 and gave Danos 30 days to Baker and Meyer, considered together or separately, fail to cure the deficiency. 3 Within the 30 days, Danos served a satisfy Chapter 74's requirements. Rittger also seeks remand new report from Baker as well as a report from John Meyer, on the issue of attorney's fees. M.D., a neurological expert not previously designated. The trial court found that Baker, although qualified to opine on the standard of care and its breach, failed to show the nexus II. Medical Expert Reports between the negligence and the injury. The trial court further

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Rittger v. Danos, 332 S.W.3d 550 (2009)

that failure and the injury, harm, or damages claimed. See id. A. Standard of Review § 74.351(r)(6); Palacios, 46 S.W.3d at 877. We review all section 74.351 rulings under an abuse of discretion standard. Am. Transitional Care Centers v. [2] [3] [4] [5] Although the report need not marshall all Palacios, 46 S.W.3d 873, 877 (Tex.2001). A trial court abuses the plaintiff's proof, it must include the expert's opinions on its discretion if it acts in an arbitrary or unreasonable manner the three statutory elements—standard of care, breach, and without reference to guiding rules or principles. See Garcia v. causation. See Palacios, 46 S.W.3d at 878; Gray v. CHCA Martinez, 988 S.W.2d 219, 222 (Tex.1999). When reviewing Bayshore, L.P., 189 S.W.3d 855, 859 (Tex.App.-Houston [1st matters committed to the trial court's discretion, we may Dist.] 2006, no pet.). In detailing these elements, the report not substitute our own judgment for that of the trial court. must provide enough information to fulfill two purposes if Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). A trial it is to constitute a good faith effort. First, the report must court does not abuse its discretion merely because it decides inform the defendant of the specific conduct the plaintiff has a discretionary matter differently than an appellate court called into question. Palacios, 46 S.W.3d at 879. Second, the would in a similar circumstance. See Downer v. Aquamarine report must provide a basis for the trial court to conclude Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985). that the claims have merit. Id. A report that merely states the expert's conclusions as to the standard of care, breach, *555 Although we may defer to the trial court's factual and causation does not fulfill these two purposes. Id. The determinations, we review questions of law de novo. Rittmer expert must explain the basis for his statements and link his v. Garza, 65 S.W.3d 718, 722 (Tex.App.-Houston [14th Dist.] conclusions to the facts. Bowie, 79 S.W.3d at 52 (citing Earle 2001, no pet.). To the extent resolution of the issue before v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). Furthermore, the trial court requires interpretation of the statute itself, we in assessing the report's sufficiency, the trial court may not apply a de novo standard. Buck v. Blum, 130 S.W.3d 285, 290 draw any inferences, and instead must rely exclusively on the (Tex.App.-Houston [14th Dist.] 2004, no pet.). information contained within the report's four corners. See Palacios, 46 S.W.3d at 878. [1] In reviewing whether an expert report complies with Chapter 74.351, we evaluate whether the report “represents a good-faith effort” to comply with the statute. Strom v. C. Adequacy of Experts' Reports Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex.App.- Reading both the Baker and Meyer reports together, we Houston [1st Dist.] 2003, pet. denied). In making this conclude that the documents satisfy all three elements under evaluation, we must look only at the information that is Palacios. Specifically, they identify the standard of care, contained within the four corners of the report. Bowie Mem'l describe the conduct that allegedly breached that standard, Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002). and identified a causal relationship between the alleged breach and Danos's injury.

B. Chapter 74 Expert Report Requirements Pursuant to section 74.351, medical-malpractice plaintiffs 1. Dr. Baker's Reports must provide each defendant physician and health care *556 [6] First, we review the adequacy of Dr. Baker's provider with an expert report or voluntarily nonsuit the reports as it pertains to the standard of care for Rittger action. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) and the breach of that standard. The initial report by Baker (Vernon Supp. 2008). If a claimant timely furnishes an expert collectively addressed the negligence of Rittger and others. report, a defendant may file a motion challenging the report's Specifically, the report alleged that: adequacy. Id. The trial court shall grant the motion only if it appears, after hearing, that the report does not represent a Dr. Rittger and Dr. V. Patel deviated from the standard good faith effort to comply with the statutory definition of of care by failing to diagnose TIA [transient ischemic an expert report. See id. § 74.351(1). The statute defines an attack] and by failing to admit the patient for further expert report as a written report by an expert that provides, evaluation and treatment of her TIA. That evaluation as to each defendant, a fair summary of the expert's opinions should have initially consisted of laboratory work such as of the date of the report regarding: (1) applicable standards as a CBC with platelet count, prothrombin time, and of care; (2) the manner in which the care provided failed to partial thromboplastin time in an effort to explore meet the standards; and (3) the causal relationship between hypercoagulabile states, an echocardiogram looking for

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Rittger v. Danos, 332 S.W.3d 550 (2009)

cardiac sources of emboli, and a carotid Dopplar ultrasound on the same patient when each physician owes the same to evaluate the patient for carotid sources of emboli, and, if duties to the patient. In re Boone, 223 S.W.3d 398, 405– warranted, an MIR/MRA for further evaluation. It is well- 06 (Tex.App.-Amarillo 2006, no pet.) (holding expert report known that pregnancy predisposes patients to thrombo- sufficient with same standard of care for multiple defendants embolic phenomenon including TIA's and strokes. This when each defendant was performing same duties on same is because physiologic states associated with elevated patient); Romero v. Lieberman, 232 S.W.3d 385, 391–92 estrogen and progesterone levels such as pregnancy and the (Tex.App.-Dallas 2007, no pet.) (defendants' argument that use of birth control pills cause hypercoagulabile states that expert report was insufficient because they were not given are associated with increased clotting resulting in strokes individual standards of care and were being held to “one size [sic] and other thrombo-embolic phenomenon. Failure to fits all” standard were unmeritorious as each physician owed make the diagnosis of TIA and to formulate a plan to treat same duties and were held to same standard). Virginia Danos was a deviation from the standard of care and causally related to her subsequent stroke. *557 Rittger relies on Taylor v. Christus Spohn Health System Corp. and Rittmer v. Garza to support his contention ... that Baker's reports are inadequate as to the standard of care and breach because it collectively refers to a group of With a reasonable degree of medical certainty, had she been doctors rather than setting forth individual standards as to admitted and treated, her TIA would not have progressed Rittger. See Taylor v. Christus Spohn Health Sys. Corp., 169 to a left MCA stroke. S.W.3d 241, 243 (Tex.App.-Corpus Christi 2005, no pet.); Rittmer v. Garza, 65 S.W.3d 718, 721 (Tex.App.-Houston In the second report, Baker added the following paragraph: [14th Dist.] 2001, no pet.). We find both Taylor and Rittmer Virginia Danos was pregnant at the distinguishable. time of this incident and, because of her pregnancy, she had elevated In Taylor, the defendants included a hospital, a doctors' estrogen and progesterone levels. As association, an emergency room physician, and a cardiologist, a direct result, she was predisposed and the expert failed to state what each defendant should to thrombo-embolic events including have done to meet the standard of care and failed to do, TIA's and strokes. Dr. Rittger and and how the failure led to the patients death. Taylor, 169 Dr. V. Patel should have recognized S.W.3d at 243. Here, Baker's report comments on the failure that she was predisposed to these of a uniform duty owed by both doctors to the same thrombo-embolic events because of patient. And, also unlike Taylor, Baker specifically names the her elevated estrogen and progesterone individual doctors, identifies their specific negligent actions, levels. High suspicions should have and discusses their failures according to the uniform standard led them to diagnose TIA which of care that both doctors owed to Danos. should have resulted in admission for further evaluation and treatment. In Rittmer, the plaintiff conceded her report failed to set out specific standards of care for two distinct specialists— an oncologist performing a mastectomy and a plastic surgeon Dr. Baker's reports detail the standard of care to which Rittger performing reconstructive surgery. Rittmer, 65 S.W.3d at was required to conform and the breach of that standard. 722. This is distinct from Baker's articulation of a standard See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r) of care for a duty owed to a patient in an emergency room (6). The reports provide Rittger with a fair summary of setting. Baker's opinions concerning the standard of care and how Rittger failed to meet that standard of care. Palacios, 46 [8] Rittger argues further that Baker's report failed to S.W.3d at 880. Nevertheless, Rittger argues that the reports specify what particular actions or what additional specific are insufficient because Baker collectively referenced Rittger care Rittger should have provided Danos. On the contrary, and Patel in discussing the standard of care. We disagree. Baker's supplemental report indicates that, upon recognizing the high risk of TIA and stroke present during pregnancy, [7] Appellees are not required to specifically state the same standard of care for each individual physician practicing

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Rittger v. Danos, 332 S.W.3d 550 (2009)

Rittger and Patel should have admitted Danos for further evaluation and treatment. Nevertheless, Rittger contends that Meyer's report is conclusory as to causation. We disagree. Meyer causally links For the foregoing reasons, we conclude that Baker's Rittger's failure to admit and treat Danos for her pregnancy- report provides a sufficiently specific standard of care and related toxemia directly to Danos's thrombosis of her left specifically identifies the breach of that standard of care for middle cerebral artery and thus provides a sufficient basis for an emergency room physician. Thus, Baker's reports meet the his opinion. Consequently, we conclude that Meyer's report first and second prongs of Palacios. satisfies the third prong of Palacios.

2. Dr. Meyer's Report D. Qualifications of Experts [9] Next, we review Dr. Meyer's report to determine whether Section 74.351 defines an “expert” with respect to a person it sufficiently links the alleged breaches of the standard of care opining as to whether a physician departed from accepted with Danos's injuries. Meyer's report reads, in pertinent part: standards of medical care, as one who is qualified to testify under the requirements of Section 74.401. See TEX. CIV. Dr. Rittger and Dr. Patel and the triage staff at Christus St. PRAC. & REM.CODE ANN. § 74.351(r)(5)(A) (Vernon John Hospital all fell below [the] standard of care for not Supp. 2008). Section 74.401 states that a physician is admitting [Danos] and working her up for probable stroke qualified to give such testimony against a physician if he: with diagnosis of left middle cerebral artery impending (1) is practicing medicine at the time such testimony is given thrombosis or stroke due to toxemia of pregnancy. or was practicing medicine at the time the claim arose; (2) has knowledge of accepted standards of medical care for the ... diagnosis, care, or treatment of the illness, injury, or condition Christus St. John Hospital and the conduct of ER Triage involved in the claim; and (3) is qualified on the basis of nurse, C. Southard, RN, Kevin Rittger, MD, John Gillespie, training or experience to offer an expert opinion regarding MD and Victor Patel, MD were all negligent and all those accepted standards of medical care. TEX. CIV. PRAC. fell below the standard of care in their treatment of Lou REM.CODE ANN. § 74.401(a) (Vernon 2005). Virginia Danos by not admitting her to the hospital with diagnosis of impending stroke and treating her with anti- When determining whether a witness is qualified on the basis platelet drugs, control of her BP and treatment of her of training or experience, the court considers whether, “at the eclampsia or toxemia of pregnancy and arranging for time the claim arose or at the time the testimony is given, the immediate Caesarian Section by delivering her child for witness (1) is board certified or has other substantial training prevention of complications or pre-eclampsia or toxemia or experience in an area of medical practice relevant to the pregnancy. claim and (2) is actively practicing medicine in rendering medical care services relevant to the claim.” Id. § 74.401(c) As a result, Ms. Virginia Danos suffered from thrombosis (Vernon 2005). of her left middle cerebral artery as a complication of toxemia of pregnancy, which if treated early, [the] stroke [10] The expert testifying in a medical malpractice case need would have been prevented *558 and she would have not be a specialist in the particular branch of the profession for remained neurologically normal. Apart from termination which testimony is offered; the statute setting out the requisite of pregnancy by Caesarian section, control of her elevated qualifications focuses not on the defendant doctor's area of blood pressure, plus treatment with anti-platelet drugs expertise, but on the condition involved in the claim. Blan v. would have all been indicated to prevent her stroke. Ali, 7 S.W.3d 741, 745 (Tex.App.-Houston [14th Dist.] 1999, no pet.). We conclude that Meyer's report is sufficient to establish causation because it links Rittger's alleged breaches of the standard of care with Danos's injuries. Meyer unequivocally 1. Dr. Baker states that Danos suffered neurological injury as the result of Baker is board certified in emergency medicine. As such, appellant's breach of the standard of care. Meyer reaches this he has the training and experience to testify concerning conclusion after he sets forth the pertinent standard of care the appropriate standard of care for an emergency room and how Danos's injury could have been prevented. physician. TEX. CIV. PRAC. & REM.CODE ANN. §

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Rittger v. Danos, 332 S.W.3d 550 (2009)

require that Dr. Meyer be an obstetrician or emergency room 74.401(a)(3) (Vernon 2005). Rittger does not dispute that physician. Dr. Meyer is shown to be sufficiently competent Baker is qualified to testify regarding the standard of care and and qualified to testify as to the care of patients with stroke as breach. Danos, 253 S.W.3d at 299. a complication of pregnancy-related toxemia. See Simpson, 537 S.W.2d at 116–18 (concluding that general physician 2. Dr. Meyer qualified to testify as expert against physician specializing in [11] [12] [13] Rittger argues that neither Meyer's report obstetrics and gynecology). nor his curriculum vitae qualify Meyer, a neurologist, to provide an opinion on the pertinent standard of care or breach thereof by Rittger as an emergency room physician. Danos, III. Conclusion as the expert's *559 proponent, has the burden to show that Meyer is qualified and that Meyer's report satisfies the The expert reports, considered together, satisfy the statutory requirements. Mem'l Hermann Healthcare Sys. v. requirements provided in Palacios by informing the appellant Burrell, 230 S.W.3d 755, 757 (Tex.App.-Houston [14th Dist.] of the specific conduct called into question and giving the 2007, no pet.). No definitive guidelines exist for determining trial court a basis to conclude whether or not the claims have whether a witness's education, experience, skill, or training merit. See Palacios, 46 S.W.3d at 879. The reports comply qualify him as an expert. Id. at 762. with section 74.351 by detailing the standard of care to which Rittger was required to conform, the breach of that standard, [14] As a board-certified neurologist and professor in Baylor and causation. See TEX. CIV. PRAC. & REM.CODE ANN. College of Medicine's Department of Neurology, Meyer § 74.351(r)(6); Palacios, 46 S.W.3d at 878. Based on the has knowledge of the accepted standards of care for brain standards articulated in Palacios, we conclude that Danos trauma. Where a particular subject of inquiry is common made a good faith effort to comply with the statute and that the to and equally developed in all fields of practice, and the trial court did not err in overruling Rittger's objections to the prospective medical expert witness has practical knowledge expert reports. Accordingly, we hold that the trial court did of what is usually and customarily done by a practitioner not abuse its discretion in denying Rittger's motion to dismiss. under circumstances similar to those which confronted the We overrule Rittger's issue on appeal and affirm the order that practitioner charged with malpractice, the witness is qualified denied Rittger's motion to dismiss. to testify. Simpson v. Glenn, 537 S.W.2d 114, 117 (Tex.App.- Amarillo 1976, writ ref'd n.r.e.). The treatment of patients with brain trauma is common in the field of neurology; All Citations therefore Dr. Meyer qualifies as an expert. The fact that Danos 332 S.W.3d 550 was pregnant when she experienced her stroke or that she presented herself in an emergency room setting does not

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)

323 S.W.3d 527 West Headnotes (17) Court of Appeals of Texas, Waco. [1] Appeal and Error Ana Maria Gonzalez SALAIS, Individually Rulings on Motions Relating to Pleadings and as Representative of the Estate of A trial court's decision to dismiss a health-care Ruben Gonzalez, Deceased, Appellants, liability claim under the expert report statute v. is reviewed by the abuse-of-discretion standard. TEXAS DEPARTMENT OF AGING V.T.C.A., Civil Practice & Remedies Code § & DISABILITY SERVICES, Appellee. 74.351.

No. 10–09–00155–CV. | Aug. 4, 2010. Cases that cite this headnote

Synopsis [2] Appeal and Error Background: Mother of patient who died at a Texas Competency of witness Department of Aging and Disability Services (TDADS) A trial court's decision on whether a person is facility brought a health-care liability action against TDADS. qualified to offer an expert opinion in a health- The 77th District Court, Limestone County, Deborah Oakes care liability claim is reviewed under the abuse- Evans, J., granted motion to dismiss by TDADS, and mother of-discretion standard. V.T.C.A., Civil Practice appealed. & Remedies Code § 74.351.

1 Cases that cite this headnote Holdings: The Court of Appeals, Rex D. Davis, J., held that: [3] Appeal and Error [1] paramedic was qualified to provide an expert opinion on Nature and Extent of Discretionary Power the accepted standard of care in restraining patients; A trial court has no discretion in determining what the law is or applying the law to the facts. [2] paramedic's expert report represented a good-faith effort to comply with the expert report statute; Cases that cite this headnote

[3] physician's expert report did not establish he was qualified to provide an opinion on the cause of patient's death; but [4] Appeal and Error Abuse of discretion [4] expert reports of paramedic and physician together A clear failure by the trial court to analyze or constituted a good-faith effort to provide a fair summary of apply the law correctly will constitute an abuse the cause of patient's death; and of discretion.

[5] case would be remanded so that trial court could exercise Cases that cite this headnote its discretion regarding mother's request for an extension to cure technical deficiency in physician's report. [5] Evidence Due care and proper conduct in general

Reversed. Paramedic, who provided opinion for mother of developmentally disabled patient who died after Tom Gray, C.J., dissented and filed opinion. being physically retrained by healthcare staff at Texas Department of Aging and Disability Services (TDADS) facility, was qualified to offer an expert opinion on the accepted standards

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)

of care in mother's health-care liability action the statute the report must address the standard against TDADS, where, based on mother's of care, breach, and causation with sufficient allegations, the type of care or treatment specificity to inform the defendant of the conduct and the condition involved was the use of the plaintiff calls into question and to provide a physical restraint and a restraint board on a basis for the trial court to conclude that the claims combative person, and paramedic was a certified have merit. V.T.C.A., Civil Practice & Remedies practitioner familiar with the standard of care Code § 74.351. in restraining combative persons and instructed others on such standard of care. V.T.C.A., Civil 2 Cases that cite this headnote Practice & Remedies Code § 74.351. [9] Health Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits [6] Health Paramedic's expert report, provided on behalf Affidavits of merit or meritorious defense; of mother of developmentally disabled patient expert affidavits in health-care liability action brought against When considering a motion to dismiss under Texas Department of Aging and Disability the expert report statute for health-care liability Services (TDADS) after patient died while claims, the issue is whether the report represents being physically restrained by TDADS facility, a good-faith effort to comply with the statutory represented a good-faith effort to comply with definition of an expert report. V.T.C.A., Civil the expert report statute for health-care liability Practice & Remedies Code § 74.351. claims, where report noted that paramedic had been qualified as an expert in restraint asphyxia, 1 Cases that cite this headnote stated he was familiar with the standard of care for restraining combative persons, stated what [7] Health steps should be taken to monitor for respiratory Affidavits of merit or meritorious defense; distress, and stated that had any of the restrainers expert affidavits prevented the application of the restraint board it was more likely than not that the patient In determining whether a report represents a would not have suffered from restraint asphyxia. good-faith effort to comply with the expert V.T.C.A., Civil Practice & Remedies Code § report statute for health-care liability claims, the 74.351. inquiry is limited to the four corners of the report. V.T.C.A., Civil Practice & Remedies Code § Cases that cite this headnote 74.351.

1 Cases that cite this headnote [10] Health Affidavits of merit or meritorious defense; expert affidavits [8] Health Affidavits of merit or meritorious defense; Expert reports can be considered together in expert affidavits determining whether the plaintiff in a health care liability action has provided adequate An expert report need only represent a good-faith expert opinion regarding the standard of care, effort to provide a fair summary of the expert's breach, and causation. V.T.C.A., Civil Practice opinions, in order to comply with the expert & Remedies Code § 74.351. report statute for health-care liability claims; the report does not have to marshal all of the 2 Cases that cite this headnote plaintiff's proof and the plaintiff need not present evidence in the report as if it were actually litigating the merits, and, instead, to comply with [11] Health

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)

Affidavits of merit or meritorious defense; report statute for health-care liability claims. expert affidavits V.T.C.A., Civil Practice & Remedies Code § A physician's report on causation should not be 74.351. read in isolation, for purposes of the expert report 1 Cases that cite this headnote statute for health-care liability claims. V.T.C.A., Civil Practice & Remedies Code § 74.351. [15] Health 2 Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits [12] Health Expert reports of paramedic and emergency Affidavits of merit or meritorious defense; medicine physician, in health care liability action expert affidavits mother of developmentally disabled patient The qualifications of an expert must appear brought against Texas Department of Aging and in the report itself and cannot be inferred, for Disability Services (TDADS) after patient died purposes of the expert report statute for health- while being physically restrained by TDADS care liability claims. V.T.C.A., Civil Practice & employees, together constituted a good-faith Remedies Code § 74.351. effort to provide a fair summary of the causal relationship between employees' conduct and 3 Cases that cite this headnote patient's death by restraint asphyxia as required by the expert report statute for health-care liability claims, though physician's report did not [13] Health show that he was qualified to give an expert Affidavits of merit or meritorious defense; opinion on causation, as the reports provided expert affidavits enough information linking the breach of the Expert report of physician did not establish standard of care to the death. V.T.C.A., Civil that he was qualified to opine on the causal Practice & Remedies Code § 74.351. relationship of employees' conduct and patient's death, as required in order for the report to 1 Cases that cite this headnote satisfy the expert report statute for health-care liability claims in health care liability action [16] Judgment mother of developmentally disabled patient Necessity for entry brought against Texas Department of Aging and Disability Services (TDADS) after patient died Motions while being restrained by health care workers at Entry or Filing of Orders TDADS facility, where physician's curriculum Any order or judgment, to be effective, must be vitae (CV) only disclosed that he was practicing entered of record. in the field of emergency medicine, and in the past held positions as an emergency medicine 1 Cases that cite this headnote physician and a general and trauma surgeon. V.T.C.A., Civil Practice & Remedies Code § [17] Appeal and Error 74.351. Ordering New Trial, and Directing Further Proceedings in Lower Court 3 Cases that cite this headnote Health care liability action, brought by mother of developmentally disabled patient against [14] Health Texas Department of Aging and Disability Affidavits of merit or meritorious defense; Services (TDADS) after patient died while being expert affidavits physically restrained by TDADS employees, Merely being a physician is insufficient to would be remanded by Court of Appeals to the qualify as a medical expert under the expert trial court so that the trial court could exercise

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)

its discretion under the expert report statute Salais also pleads: regarding whether mother should be granted an extension to cure technical deficiency in In the Prevention & Management of Aggressive Behavior physician's report, i.e., report did not set forth Course Synopsis allegedly provided by Defendant Mexia his qualifications to give an expert opinion on [State School] to its employees, employees are warned that causation, as only the docket sheet indicated that “[e]xtreme care must be exercised during any horizontal mother's motion for an extension was denied, restraint to insure that the person's ability to breathe but docket-sheet entries were not “of-record” is not restricted.... [D]uring all horizontal restraints, the rulings. V.T.C.A., Civil Practice & Remedies person must remain in a side-lying position and monitored Code § 74.351(c). continuously. Failure to do so may risk serious injury and death from positional asphyxia, [which] occurs when Cases that cite this headnote there is insufficient intake of oxygen as a result of body positioning that interferes with one's ability to breathe.” [Ellipsis and brackets in original].

Attorneys and Law Firms She further pleads that the “Mexia State School Annual Retraining Course Synopsis,” allegedly provided to every *530 R. Keith Weber, Woodfill & Pressler LLP, Houston, participant, gives the same warning and also provides for Appellants. “that the person who is restraining the lower body has an important role in monitoring breathing, circulation, and John P. Giberson, Atty. General's Office, Tort Litigation general condition of the restrained individual, and in assisting Division, Austin, Neal E. Pirkle, Naman, Howell, Smith & in maintaining the restrained individual in a side-lying Lee LLP, Waco, for Appellee. position.” Before Chief Justice GRAY, Justice REYNA, and Justice *531 In her health-care liability cause of action, Salais DAVIS. alleges that TDADS [Mexia State School] and TDADS employees Korn, Thornton, and Thomas were negligent in the care and treatment of Ruben in each of the following ways: OPINION 1. Failure to recognize and/or appreciate the risk factors REX D. DAVIS, Justice. for the potential occurrence of death when performing a Ana Maria Gonzalez Salais appeals the trial court's order physical restraint; dismissing her health-care liability claim against the Texas 2. Misuse of the restraints and restraint board when Department of Aging and Disability Services (TDADS). performing a physical restraint;

Salais's live petition alleges that her son Ruben Gonzalez 3. Failure to anticipate the risk of traumatic asphyxia when was a patient at the Mexia State School, a TDADS facility, performing a physical restraint; because of his developmental disability. Late one evening (after midnight), Ruben had refused to go to bed and was 4. Failure to plan the physical restraint according to the then physically restrained by Sheri Thornton and Charles increased risk for serious injury to Decedent; Korn, two TDADS employees. After Joel Thomas, a third 5. Inappropriate management of the complication of employee, arrived, they placed Ruben on a restraint board. performing a physical restraint; Sue Sanderson, a TDADS nurse, was called to the scene and found Ruben pale with no pulse or blood pressure. Sanderson 6. Failure to have the requisite knowledge regarding was unable to resuscitate Ruben. An automated external appropriate responses to a combative physical restraint; defibrillator (AED) was employed, but it was not used to shock Ruben. Paramedics arrived and their monitor showed a 7. Failure to perform the appropriate interventions flat line and no cardiac rhythm. Ruben was taken to a hospital, during the physical restraint of Decedent once health where he was pronounced dead. complications were encountered;

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)

TDADS's motion to dismiss and brief assert that Wohlers's 8. Failure to provide proper education and training to report and CV do *532 not establish his qualifications employees who were called upon to assist in the restraint to testify about the standards of care applicable to the of Decedent. Mexia State School healthcare staff or to the treatment for individuals with behavioral, mental, and developmental Section 74.351 of the Civil Practices and Remedies Code disabilities. Its brief also asserts that Wohlers's report does provides that within 120 days of filing suit, a claimant must not show that the “management and care” of Ruben on the serve a curriculum vitae (CV) and one or more expert reports occasion in question is “something universally done.” regarding every defendant against whom a health care claim is asserted. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351 Regarding his qualifications, Wohlers's report states: (Vernon Supp. 2009). Salais provided two expert reports. One report was by James Wohlers, a paramedic, which addresses I received my paramedic education the standard of care and breach elements relating to the use of from Creighton University in 1992. the restraint board and the AED. The other report, of Donald Initially I was a paramedic in Winston, M.D., addresses the causation element. Omaha, Nebraska from 1992 to 1996, then a paramedic for the TDADS objected to the reports and moved to dismiss Salais's City and County of Denver from health-care liability claim under section 74.351. See id. The 1996 until 2000. Since 2000, I motion asserted that Salais's experts were not qualified and have been with the Grand Island that their reports were inadequate. The trial court granted Fire Department in Grand Island, TDADS's motion to dismiss without stating any grounds. Nebraska as a paramedic/firefighter. I In her first issue, Salais argues that the trial court erred in have also been involved in restraint granting TDADS's motion to dismiss. asphyxia education since 2006. I teach to EMS, Law Enforcement and [1] [2] [3] [4] We review the trial court's decision persons involved in the restraining to dismiss a health-care liability claim by the abuse-of- of combative persons. I have been discretion standard. American Transitional Care Ctrs. of Tex., qualified as an expert in the field of Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). Also, a restraint asphyxia. trial court's decision on whether a person is qualified to offer an expert opinion in a health-care liability claim is reviewed Wohlers's CV restates the above history and notes his under the abuse-of-discretion standard. Moore v. Gatica, 269 certification as an EMS instructor and that he specializes S.W.3d 134, 139 (Tex.App.-Fort Worth 2008, pet. denied). in “restraint-related issues” and instructs on Advanced Life “However, a trial court has no discretion in determining what Support and Basic Life Support topics. His report further the law is or applying the law to the facts. Walker v. Packer, states: 827 S.W.2d 833, 840 (Tex.1992). A clear failure by the trial court to analyze or apply the law correctly will constitute I am familiar with the standard of care an abuse of discretion. Id.” Austin Heart, P.A. v. Webb, 228 for restraining a combative person and S.W.3d 276, 279–80 (Tex.App.-Austin 2007, no pet.); see understand what steps should be taken also Methodist Hosp. v. Shepherd–Sherman, 296 S.W.3d 193, to monitor for respiratory distress. 197 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (“Though Through my education, background we may not substitute our judgment for that of the trial court, and experience, I am knowledgeable the trial court has no discretion in determining what the law in the standard of care that the staff is or applying the law to the facts.”). of Mexia State School should have provided to Mr. Gonzales on the night he died.

Wohlers Report On the issue of Wohlers's qualifications, we turn to the Qualifications applicable statute, section 74.402, which provides in pertinent part:

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)

in Wohlers's report, the type of care or treatment and the (b) In a suit involving a health care liability claim against condition involved is the use of physical restraint and a a health care provider, a person may qualify as an expert restraint board on a combative person. Wohlers's report and witness on the issue of whether the health care provider CV show that he is a certified practitioner and instructor departed from accepted standards of care only if the person: in health care services relevant to the health-care liability claim in this case; he has been a paramedic since 1992 (1) is practicing health care in a field of practice that and has been instructing on restraint asphyxia since 2006, involves the same type of care or treatment as that delivered including teaching persons involved in the restraining of by the defendant health care provider, if the defendant combative persons. His report states that he is familiar with health care provider is an individual, at the time the the standard of care for restraining a combative person and is testimony is given or was practicing that type of health care knowledgeable of the standard of care that the staff of Mexia at the time the claim arose; State School should have provided to Ruben on the night he (2) has knowledge of accepted standards of care for health died with respect to the use of physical restraint and a restraint care providers for the diagnosis, care, or treatment of the board. illness, injury, or condition involved in the claim; and Under the applicable criteria in section 74.402(b), Wohlers's (3) is qualified on the basis of training or experience to report and CV demonstrate that he is qualified to offer an offer an expert opinion regarding those accepted standards expert opinion on the accepted standards of care for this type of health care. of care or treatment by TDADS healthcare staff of combative persons. To the extent the trial court concluded otherwise, the (c) In determining whether a witness is qualified on the trial court abused its discretion. 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: Adequacy TDADS's motion to dismiss asserted that Wohlers's report is (1) is certified by a licensing agency of one or more states inadequate because it does not articulate the relevant standard of the United States or a national professional certifying of care and/or the bases for the relevant standards of care agency, or has other substantial training or experience, in applicable to TDADS and it does not specifically state the the area of health care relevant to the claim; and manner in which TDADS breached the applicable standard (2) is actively practicing health care in rendering health of care. care services relevant to the claim. [6] When considering a motion to dismiss under subsection TEX. CIV. PRAC. & REM.CODE ANN. § 74.402(b, c) 74.351(b), the issue is whether the report represents a good- (Vernon 2005). faith effort to comply with the statutory definition of an expert report. See Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 [5] We disagree that Wohlers was required to be qualified (Tex.2002); Palacios, 46 S.W.3d at 878. An “expert report” in general as an expert about the standards of care applicable is “a written report by an expert that provides a fair summary to the Mexia State School healthcare staff for the care and of the expert's opinions as of the date of the report regarding treatment for individuals *533 with behavioral, mental, and applicable standards of care, the manner in which the care developmental disabilities. Rather, under the literal language rendered by the physician or health care provider failed to of subsections 74.402(b)(1, 2), Wohlers is only required to meet the standards, and the causal relationship between that be practicing health care in a field of practice that involves failure and the injury, harm, or damages claimed.” TEX. CIV. the same type of care or treatment as that delivered by the PRAC. & REM.CODE ANN. § 74.351(r)(6). defendant health care provider and have knowledge of the accepted standards of care for health care providers for the [7] [8] In determining whether the report represents a care or treatment of the condition involved in the claim. good-faith effort, the inquiry is limited to the four corners See id. § 74.402(b)(1, 2); see, e.g., Group v. Vicento, 164 of the report. Palacios, 46 S.W.3d at 878. The report need S.W.3d 724, 730–31 (Tex.App.-Houston [14th Dist.] 2005, only represent a good-faith effort to provide a fair summary of pet. denied). Based on Salais's allegations and the information the expert's opinions. Id. The report does not have to marshal all of the plaintiff's proof and the plaintiff need not present

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)

evidence in the report as if it were actually litigating the conduct that Salais calls into question and provides a basis merits. Id. at 879. Rather, to constitute a good-faith effort, for the trial court to conclude that the claims have merit. the report must address the standard of care, breach, and See Palacios, 46 S.W.3d at 875. It informs TDADS “what causation with sufficient specificity to inform the defendant care was expected but not given.” Fagadau v. Wenkstern, 311 of the conduct the plaintiff calls into question and to provide a S.W.3d 132, 138 (Tex.App.-Dallas 2010, no pet. h.) (citing basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 880). To the extent the trial court Id. at 875. concluded otherwise, the trial court abused its discretion.

[9] The Wohlers report notes that he has been qualified as an expert in restraint *534 asphyxia. It cites an investigative Dr. Winston Report report that he reviewed and details the course of events and the conduct of three employees (Thomas, Korn, and Thornton) in [10] [11] Section 74.351(i) permits a claimant to satisfy placing Ruben on a restraint board and, according to Thomas, any requirement of section 74.351 for serving an expert report using a restraint strap across his diaphragm, after which by serving reports of separate experts. TEX. CIV. PRAC. Ruben “was breathing hard, in gasps, and making gurgling & REM.CODE ANN. § 74.351(i); see Packard v. Guerra, sounds.” According to Korn, a restraint strap was across 252 S.W.3d 511, 527 (Tex.App.-Houston [14th Dist.] 2008, Ruben's chest, and Korn observed only a “slight rise” in his pet. denied). Expert reports can be considered together in chest; Ruben had a weak pulse. Thornton observed Ruben on determining whether the plaintiff in a health–care liability the restraint board and thought he was asleep, but he looked action has provided adequate expert opinion regarding the “funny” and was breathing shallow. Nurse Sanderson arrived, standard of care, breach, and causation. See Walgreen Co. and after finding Ruben's color to be abnormally pale, no v. Hieger, 243 S.W.3d 183, 186 n. 2 (Tex.App.-Houston blood pressure, and no pulse, she initiated CPR and attempted [14th Dist.] 2007, pet. denied); Martin v. Abilene Regional to use an AED. Mexia Fire/EMS then arrived, took over CPR, Med. Center, No. 11–04–00303–CV, 2006 WL 241509, at and did an endotracheal intubation before transferring Ruben *4–5 (Tex.App.-Eastland Feb. 2, 2006, no pet.) (mem. op.). to Parkview Regional Hospital, where he was pronounced A physician's report on causation should not be read in dead. Wohlers states: isolation. See Martin, 2006 WL 241509, at *4; see also TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5)(C) I am familiar with the standard of care for restraining (providing that only a physician can be an expert giving a combative person and understand what steps should opinion testimony on causal relationship). be taken to monitor for respiratory distress. Through my education, background and experience, I am knowledgeable in the standard of care that the staff of *535 Qualifications Mexia State School should have provided to Mr. Gonzalez TDADS's motion to dismiss and brief assert that Dr. on the night he died. Winston's report and CV do not establish his qualifications to testify about causation. Its brief first asserts that there The standard of care requires that if any one of the persons is no showing that Dr. Winston is a licensed physician. involved in the restraining of Mr. Gonzalez had recognized “Expert” means, “with respect to a person giving opinion that he was in respiratory distress, he should not have testimony about the causal relationship between the injury, been placed on a restraint board and had straps placed harm, or damages claimed and the alleged departure from the across his chest. Had anyone of the restrainers prevented applicable standard of care in any health care liability claim, the application of the restraint board, it is more likely than a physician who is otherwise qualified to render opinions on not that Mr. Gonzalez would not have suffered restraint such causal relationship under the Texas Rules of Evidence.” asphyxia. No one intervened in the application of the TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(5) restraint board. (C) (Vernon Supp. 2009); see also TEX. CIV. PRAC. & REM.CODE ANN. § 74.403(a) (Vernon 2005). Wohlers's report sets forth his familiarity with the standard of care and the basis therefor, what the standard of care Dr. Winston's report is in a letter format, and his is, and how the TDADS staff breached it on the occasion letterhead and typed signature block identify him as “Donald in question. The report addresses the standard of care and Winston, MD.” His letterhead also reveals his website breach with sufficient specificity to inform TDADS of the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)

(www.urbansurgeon.com) and his email address at that website. Furthermore, his December 2008 CV reflects that 1 To the extent that Salais has asserted a health-care he is a licensed Texas physician (No. F0832, licensed liability claim based on alleged misuse of the AED (it in February 1978 and expiring May 31, 2010). TDADS's is in the Wohlers report, but it is not pleaded by Salais), assertion that there is no showing that Dr. Winston is a there is “no report” at all as to causation, and the trial licensed physician is incorrect. court properly dismissed that part of the health-care liability claim. See Benson v. Vernon, 303 S.W.3d 755, Dr. Winston's report is a letter to Salais's attorney and states 760–61 (Tex.App.-Waco 2009, no pet.). in its entirety: [12] [13] [14] TDADS is correct that Dr. Winston's report fails to show how he is qualified to render an expert At your request, I have reviewed an autopsy report and opinion on causation in this case. Rule 702 of the Texas death certificate of Ruben Gonzales, a 15 year old Hispanic Rules of Evidence requires that an *536 expert be qualified male who apparently was a student at the Mexia State by “knowledge, skill, experience, training, or education.” School. TEX.R. EVID. 702. The qualifications of an expert must I have no way of knowing exactly what took place on appear in the report itself and cannot be inferred. See Benson or about January 15, 2007, but I have reviewed a Third v. Hall, No. 10–09–00284–CV, 2010 WL 376957, at *1 Amended Petition in Cause 28901A which states that three (Tex.App.-Waco Feb. 3, 2010, no pet. h.); Estorque v. employees of Mexia State School physically restrained Mr. Schafer, 302 S.W.3d 19, 26 (Tex.App.-Fort Worth 2009, no Gonzales. After a period of time, a nurse at the hospital pet.); Philipp v. McCreedy, 298 S.W.3d 682, 686 (Tex.App.- found Mr. Gonzales dead. Resuscitation failed, and after San Antonio 2009, no pet.); Baylor College of Medicine endotrachial [sic] intubation by Mexia Fire Department v. Pokluda, 283 S.W.3d 110, 117 (Tex.App.-Houston [14th EMS, he was taken to Parkview Regional Hospital where Dist.] 2009, no pet.); Hansen v. Starr, 123 S.W.3d 13, 19 he was pronounced dead. (Tex.App.-Dallas 2003, pet. denied). Dr. Winston's report does not set forth his qualifications at all. His CV reflects My focus is on the Autopsy report in Case No. JP0187–07– that he is currently practicing in the field of emergency 0120ACG done January 16th 2007. medicine in Houston and has held several positions as an emergency medicine physician and a general and trauma I agree with the physical findings of: surgeon. Aside from their not being in the report itself, these position descriptions alone are inadequate to show how Dr. 1. Petechiae in the right and left conjunctivae Winston is qualified to opine on the causal relationship of 2. Contusions to the right arm and left leg Ruben's death. Merely being a physician is insufficient to qualify as a medical expert. See Broders v. Heise, 924 S.W.2d 3. Subcutaneous hemorrhage on the upper back and 148, 152 (Tex.1996); Hagedorn v. Tisdale, 73 S.W.3d 341, lower back 350 (Tex.App.-Amarillo 2002, no pet.).

4. Two subgaleal hemorrhages Because there is no showing in Dr. Winston's report that he is qualified to give an expert opinion on causation, to the extent 5. Abrasions and contusions on face and arms the trial court granted the motion to dismiss on this basis, it 6. Mechanical asphyxia did not abuse its discretion. We overrule Salais's first issue.

I disagree with the final opinion of the nine pathologists to the extent that there is evidence that Mr. Gonzales in Adequacy any way contributed to his own death, but I agree that his [15] Because of our disposition of the second issue, we death was a homicide caused by restraint and mechanical must address TDADS's challenge to the adequacy of Dr. asphyxia imposed on him by the three Mexia State School Winston's report in its motion to dismiss. On the adequacy of employees. Dr. Winston's report, we are precluded “from filling gaps in a report by drawing inferences or guessing as to what the expert If you have any other questions, please feel free to contact likely meant or intended.” Austin Heart, 228 S.W.3d at 279. me. 1 But here, there is no gap, and there is no guessing, that Dr.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)

Winston's opinion on the cause of Ruben's death—“restraint and mechanical asphyxia imposed on him by the three Mexia [17] Dr. Winston's report is technically deficient—as State School employees”—is the same conduct referred to opposed to being “no report”—because the report lacks his in the Wohlers report as being the three Mexia State School qualifications to give an expert opinion on causation. It is thus employees' breach of the standard of care in restraining a appropriate to remand this case to the trial court so it can person in respiratory distress. exercise its discretion whether to grant a thirty-day extension so that Salais can attempt to cure this deficiency. See Austin When the reports are read together, as they must be in this Heart, 228 S.W.3d at 284–85; see also In re Buster, 275 case, they satisfy the causal-relationship requirement because S.W.3d 475, 477 (Tex.2008) (“A report by an unqualified they constitute a good-faith effort to provide a fair summary expert will sometimes (though not always) reflect a good- of the causal relationship between the employees' conduct faith effort sufficient to justify a 30–day extension.”). and Ruben's death by restraint asphyxia. See Martin, 2006 WL 241509, at *5. Read together, they provide “enough Accordingly, we sustain the second issue and remand this information linking the defendant's breach of the standard of cause to the trial court with the instruction to consider and care to the plaintiff's injury.” Baker v. Gomez, 276 S.W.3d rule on Salais's motion for a thirty-day extension to attempt 1, 8 (Tex.App.-El Paso 2008, pet. denied). And because to cure the deficiency in Dr. Winston's report. Dr. Winston's report does link the employees' conduct with Gonzalez's death, TDADS's reliance on Bogar v. Esparza and Shaw v. BMW Healthcare, Inc. is misplaced, as those Chief Justice GRAY dissenting. cases are distinguishable on that basis. Cf. Bogar v. Esparza, 257 S.W.3d 354, 364 (Tex.App.-Austin 2008, no pet.) (“In essence, Dr. Adame's report is a second autopsy report, TOM GRAY, Chief Justice, dissenting. opining about the cause of Ms. Guerrero's death without Ana Maria Gonzalez Salais appeals the trial court's judgment explaining who caused it or how.”) (emphasis added); Shaw dismissing her health care liability claim against the Texas v. BMW Healthcare, Inc., 100 S.W.3d 8, 12–13 (Tex.App.- Department of Aging and Disability Services. Because the Tyler 2002, pet. denied) (op. on reh'g) (“An opinion solely trial court did not abuse its discretion in granting TDADS's addressing the cause of death does not satisfy the statutory motion to dismiss or in denying Salais's request for a 30– requirements.”). day extension, we should affirm the trial court's judgment. Because the Court does not, I respectfully dissent.

Extension BACKGROUND Subsection 74.351(c) provides: “If an expert report has not been served within the *537 period specified by Subsection Salais's son, Ruben Gonzalez, was a patient at a TDADS (a) because elements of the report are found deficient, the facility, the Mexia State School. After an altercation with the court may grant one 30–day extension to the claimant in order State School staff, Gonzalez was placed on a restraint board. to cure the deficiency.” TEX. CIV. PRAC. & REM.CODE He then died. Salais sued both TDADS and the Mexia State ANN. § 74.351(c). In her second issue, Salais asserts that the School. The trial court granted TDADS's motion to dismiss. trial court abused its discretion in not granting her alternative motion for a thirty-day extension to cure her expert report's In two issues on appeal, Salais argues that the trial court deficiency. erred in granting TDADS's motion to dismiss pursuant to section 74.351 of the Texas Civil Practice and Remedies Code [16] The docket sheet appears to reflect the trial court's and erred in denying Salais's request for a 30–day extension denial of that motion, but docket-sheet entries are not “of- pursuant to section 74.351(c) of the Texas Civil Practice and record” rulings. Any order or judgment, to be effective, must Remedies Code. be entered of record. Kocman v. Kocman, 581 S.W.2d 516, 518 (Tex.Civ.App.-Waco 1979, no writ); see also Willis v. Nucor Corp., 282 S.W.3d 536, 543 (Tex.App.-Waco 2008, DISMISSAL no pet.).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)

Section 74.351 of the Civil Practices and Remedies Code The report must include the expert's opinion on each of the provides that within 120 days of filing, a claimant must three elements that the statute identifies: standard of care, serve a curriculum vitae and one or more expert reports breach, and causal relationship. Bowie, 79 S.W.3d at 52; regarding every defendant against whom a health care Palacios, 46 S.W.3d at 878. A report cannot merely state the claim is asserted. TEX. CIV. PRAC. & REM.CODE ANN. expert's conclusions about these elements. Bowie, 79 S.W.3d § 74.351(a) (Vernon Supp. 2009). “Section 74.351 has at 52; Palacios, 46 S.W.3d at 879. “Rather, the expert must numerous subparts, including: explain the basis of his statements to link his conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999). • subpart (b) requiring trial courts to dismiss a claim with prejudice and award fees if “an expert report has not been We review a trial court's order dismissing a claim for failure served” by the statutory deadline; to comply with the expert report requirements under an abuse- of-discretion standard. Bowie, 79 S.W.3d at 52; Palacios, • subpart (c) allowing a 30–day extension of the deadline if a 46 S.W.3d at 878. Expert reports that omit at least one of report is found inadequate; and the three specifically enumerated requirements of an expert report cannot constitute a good faith effort to meet the *538 • subpart (l ) providing that a motion challenging a statutory requirements. See Jernigan v. Langley, 195 S.W.3d report's adequacy should be granted only if the report does 91, 94 (Tex.2006); Palacios, 46 S.W.3d at 879. not represent a good-faith effort to comply with the statute.” Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex.2008) Salais provided two reports to serve as her expert report. (footnotes omitted); TEX. CIV. PRAC. & REM.CODE ANN. One report was prepared by James Wohlers, a paramedic § 74.351(b), (c), (l ) (Vernon Supp. 2009). from Nebraska, which Salais alleged addressed the expert report elements of the standard of care and the breach of that When considering a motion to dismiss under section 74.351, standard. The other report was prepared by Donald Winston, the issue for the trial court is whether the report represents a a physician from Houston. Salais alleged Dr. Winston's report good-faith effort to comply with the statutory definition of an addressed the causation element. TDADS complains, and I expert report. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d agree, that Dr. Winston's report wholly fails to address the 48, 52 (Tex.2002); American Transitional Care Ctrs. of Tex., causation element. Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). An “expert report” means: Assuming without deciding that Dr. Winston is otherwise qualified to render an opinion on causation, he does not. Dr. A written report by an expert that Winston states in his report that he reviewed the autopsy provides a fair summary of the expert's report of Ruben Gonzalez and the death certificate. Then, opinions as of the date of the report he simply states that, although he disagrees with the nine regarding the applicable standards of pathologists on whether Gonzalez was in part responsible care, the manner in which the care for his own death, he agrees with them in their conclusion rendered by the physician or health that it was homicide caused by restraint and mechanical care provider failed to meet the asphyxiation “imposed on him by the three Mexia State standards and the causal relationship School employees.” between that failure and the injury, harm, or damages claimed. *539 What Dr. Winston fails to do is draw the connection or explain the causal link between the negligent actions of TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(r)(6) a specific health care provider (the elements of standard of (Vernon Supp. 2009). To constitute a “good-faith effort,” the care and breach as described by Wohlers, the other purported report must discuss the standard of care, breach, and causation expert) and the damages/injury (Gonzalez's death). In other with sufficient specificity to fulfill two purposes: (1) to inform words, his report on causation must make the connection the defendant of the specific conduct the plaintiff has called that the death by mechanical asphyxiation was caused by the into question; and (2) to provide a basis for the trial court to conduct described by Wohlers, assuming that was adequately conclude that the claims have merit. Bowie, 79 S.W.3d at 52; presented in the other expert report. See Bowie, 79 S.W.3d Palacios, 46 S.W.3d at 879. at 53. Because Dr. Winston did not indicate he had reviewed

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)

parties agree and the trial court's docket sheet indicates that a the other purported expert's report, this required connection request for a 30–day extension was denied. Section 74.351(c) is simply missing. Further, it is impermissible to infer that provides in part that the trial court may grant one 30–day the conduct referenced in one report is the basis for the extension to the claimant to cure a deficiency in an expert conclusions in the other report. See Austin Heart, P.A. v. report. Id. The term “may” as used in subsection (c) vests the Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.). trial court with discretion to grant a 30–day extension. Bosch v. Wilbarger Gen. Hosp., 223 S.W.3d 460, 465 (Tex.App.- Dr. Winston's report is similar to an expert report discussed in Amarillo 2006, pet. denied); Hardy v. Marsh, 170 S.W.3d Shaw v. B.M.W. Healthcare, Inc., 100 S.W.3d 8 (Tex.App.- 865, 870–71 (Tex.App.-Texarkana 2005, no pet.). Tyler 2002, pet. denied). In Shaw, the Shaws filed two expert reports to address the three elements, one from a physician I assume without deciding that once the trial court determines and one from a registered nurse. The Shaws agreed that the that the report furnished *540 did not constitute a good faith physician's report did not set out the applicable standards of effort to meet the requirements of an expert report, the trial care or address how the defendants breached any standards. court can, nevertheless, grant a 30–day extension to cure the They argued, however, that those omissions were irrelevant deficiency. To grant such an extension, the trial court would because the physician only rendered an opinion on the cause have to consider the totality of the circumstances surrounding of death. Citing to Palacios, the Tyler Court of Appeals the preparation of the report, such as the difficulty, if any, held that because there was no discussion in the report as encountered by the plaintiff in obtaining the necessary experts to the applicable standard of care and any breaches of that or in getting the medical records necessary for the expert to standard, an opinion solely addressing the cause of death did review, the diligence of the plaintiff in securing an expert on not satisfy the statutory requirements of an expert report. the specific type of healthcare liability claim, whether a 30– Shaw, 100 S.W.3d at 13 (citing Palacios, 46 S.W.3d at day extension would have allowed the plaintiff to cure the 879). Like the report in Shaw, Dr. Winston's report only defect, and the extent of the deficiency in the proffered report. addressed Gonzalez's cause of death without a link between This list of considerations is by no means exhaustive. the alleged breach and the injury. Accordingly, I would hold that Dr. Winston's report does not meet the requirement of But in this case, we have not been provided any record an expert report because there is nothing in the report that from which we could review the trial court's determination. addresses the causal connection between the breach by the Because we have no record to review, Salais is unable to Mexia State School employees of the standard of care as support the complaint that the trial court abused its discretion allegedly contained in Wohlers's report and the injury, the in failing to grant a 30–day extension. See In the Interest death of Gonzalez, claimed. The causation element has been of D.W., 249 S.W.3d 625, 648 (Tex.App.-Fort Worth 2008, omitted from the report. no pet.) (because no record of hearing on motion to extend dismissal deadline, court presumes evidence supported trial Because Salais's expert reports omit at least one of the three court's ruling and no abuse of discretion shown). specifically enumerated requirements of subsection (r)(6), they cannot constitute a good faith effort to meet those Salais's second issue should be overruled. requirements. I need not decide TDADS's objections to Wohlers's report. Accordingly, because the trial court did not abuse its discretion in granting TDADS's motion to dismiss Salais's suit against TDADS, Salais's first issue should be CONCLUSION overruled. Having overruled each issue, I would affirm the interlocutory order of dismissal of the trial court. Because the Court does not, I respectfully dissent. CONTINUANCE

Salais further argues that should we determine the reports All Citations were deficient, we should remand the matter back to the trial court for a 30–day extension. See TEX. CIV. PRAC. & 323 S.W.3d 527 REM.CODE ANN. § 74.351(c) (Vernon Supp. 2009). The

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Salais v. Texas Dept. of Aging & Disability Services, 323 S.W.3d 527 (2010)

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

Affirmed. 346 S.W.3d 546 Willett, J., filed concurring opinion. Supreme Court of Texas.

Tyler SCORESBY, M.D., Petitioner, Johnson, J., dissented and filed opinion in which Wainwright, v. J., joined. Catarino SANTILLAN, Individually and As Next Friend of Samuel Santillan, A Minor, Respondent. West Headnotes (20) No. 09–0497. | Argued Nov. 9, 2010. | Decided July 1, 2011. | Rehearing Denied Sept. 30, 2011. [1] Health Affidavits of merit or meritorious defense; Synopsis expert affidavits Background: Patient brought action against physicians under Medical Liability Act entitles a defendant to Medical Liability Act. The 96th District Court, Tarrant dismissal of a health care liability claim if, within County, Jeff Walker, J., denied physicians' motions to dismiss 120 days of the date suit was filed, he is not for failure to file compliant health care expert report, and served with an expert report showing that the granted patient 30-day extension to cure deficiencies in claim against him has merit. V.T.C.A., Civil report. Both physicians appealed. On consolidated appeal, the Practice & Remedies Code §§ 74.001–74.507. Fort Worth Court of Appeals, Bill Meier, J., 287 S.W.3d 319, dismissed the appeals. Physicians appealed. 9 Cases that cite this headnote

[2] Appeal and Error Holdings: The Supreme Court, Hecht, J., held that: On motions relating to pleadings Trial court's refusal to dismiss health care [1] trial court should err on side of granting plaintiff additional liability claim when defendant is not served 30 days in which to cure deficiency in expert report, and with an expert report within 120 days of the defendant cannot seek review of this ruling or appeal court's date suit was filed is immediately appealable. concomitant refusal to dismiss claim before 30 day period has V.T.C.A., Civil Practice & Remedies Code §§ expired; 74.001–74.507.

[2] document qualifies as “expert report” under Medical 5 Cases that cite this headnote Liability Act if it contains statement of opinion by individual with expertise indicating that claim asserted by plaintiff has [3] Appeal and Error merit; On motions relating to pleadings

[3] 30 day extension to cure deficiencies in expert report Health may be granted if report is served by statutory deadline and Affidavits of merit or meritorious defense; contains opinion of individual with expertise that claim has expert affidavits merit; Medical Liability Act sets specific requirements for an adequate expert report and mandates that [4] doctor's expert report was deficient because it did not state objective good faith effort be made to comply standard of care; and with them, but it also authorizes the trial court to give a plaintiff who meets the 120–day deadline [5] doctor's expert report, although deficient, was not the legal for serving expert report an additional thirty days equivalent of “no report” at all under Act. in which to cure a “deficiency” in the elements of the report, and trial court should err on the side of granting the additional time and must grant

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

it if the deficiencies are curable, and defendant cannot seek review of this ruling or appeal 3 Cases that cite this headnote the court's concomitant refusal to dismiss the claim before the thirty-day period has expired. [7] Health V.T.C.A., Civil Practice & Remedies Code §§ Purpose 51.014(a)(9), 74.351(a–c, l), (r)(6). Goal of the Medical Liability and Insurance 18 Cases that cite this headnote Improvement Act (MLIIA) and the Medical Liability Act is to make health care more available and less expensive by reducing the [4] Health cost of health care liability claims, and eliciting Affidavits of merit or meritorious defense; an expert's opinions early in the litigation is an expert affidavits obvious place to start in attempting to reduce While Medical Liability Act contemplates that frivolous lawsuits and thereby reduce the costs a document can be considered an expert of claims. V.T.C.A., Civil Practice & Remedies report despite its deficiencies, the Act does Code §§ 74.001–74.507; Vernon's Ann.Texas not suggest that a document utterly devoid of Civ.St. art. 4590i (Repealed). substantive content will qualify as an expert report. V.T.C.A., Civil Practice & Remedies 5 Cases that cite this headnote Code § 74.351(r)(6). [8] Health 4 Cases that cite this headnote Affidavits of merit or meritorious defense; expert affidavits [5] Health Purpose of Medical Liability Act's expert report Affidavits of merit or meritorious defense; requirement is to deter frivolous claims, not expert affidavits to dispose of claims regardless of their merits. Document qualifies as an “expert report” under V.T.C.A., Civil Practice & Remedies Code § Medical Liability Act if it contains a statement 74.351(r)(6). of opinion by an individual with expertise indicating that the claim asserted by the plaintiff 16 Cases that cite this headnote against the defendant has merit. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6). [9] Health Affidavits of merit or meritorious defense; 15 Cases that cite this headnote expert affidavits Failing to timely file an expert report, or filing [6] Health a report that does not evidence a good-faith Affidavits of merit or meritorious defense; effort to comply with the definition of an expert expert affidavits report under Medical Liability Act, means that Under Medical Liability Act, expert's lack the claim is either frivolous, or at best has been of relevant qualifications and his opinion's brought prematurely. V.T.C.A., Civil Practice & inadequacies are deficiencies the plaintiff should Remedies Code § 74.351(c), (r)(6). be given an opportunity to cure if it is possible to do so, and this lenient standard avoids the 24 Cases that cite this headnote expense and delay of multiple interlocutory appeals and assures plaintiff a fair opportunity [10] Pretrial Procedure to demonstrate that his claim is not frivolous. Dismissal or default judgment V.T.C.A., Civil Practice & Remedies Code § There are constitutional limitations upon the 74.351(r)(6). power of courts to dismiss an action for discovery violations without affording a party

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

the opportunity for a hearing on the merits of readily curable. V.T.C.A., Civil Practice & his cause, and those limitations constrain the Remedies Code § 74.351(c), (r)(6). legislature no less in requiring dismissal. 18 Cases that cite this headnote 1 Cases that cite this headnote [15] Health [11] Health Affidavits of merit or meritorious defense; Affidavits of merit or meritorious defense; expert affidavits expert affidavits Medical Liability Act's thirty-day extension to No particular words or formality are required in cure deficiencies in an expert report may be expert report under Medical Liability Act, but granted if the report is served by the statutory bare conclusions will not suffice, and the report deadline, if it contains the opinion of an must address all the elements set forth in Act, individual with expertise that the claim has merit, and omissions may not be supplied by inference. and if the defendant's conduct is implicated. V.T.C.A., Civil Practice & Remedies Code § V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6). 74.351(c), (r)(6).

8 Cases that cite this headnote 45 Cases that cite this headnote

[12] Health [16] Appeal and Error Affidavits of merit or meritorious defense; On motions relating to pleadings expert affidavits Under Medical Liability Act, all deficiencies in Medical Liability Act allows a claimant a expert report, whether in the expert's opinions thirty-day period to cure deficiencies before the or qualifications, are subject to being cured trial court finally determines that the report is before an appeal may be taken from the trial inadequate and the claim must be dismissed. court's refusal to dismiss the case. V.T.C.A., V.T.C.A., Civil Practice & Remedies Code § Civil Practice & Remedies Code § 74.351(c), (r) 74.351(c), (r)(6). (6).

Cases that cite this headnote 4 Cases that cite this headnote

[13] Health [17] Health Purpose Affidavits of merit or meritorious defense; Medical Liability Act's principal purpose is to expert affidavits reduce the expense of health care liability claims. Doctor's expert report was deficient, and thus V.T.C.A., Civil Practice & Remedies Code §§ did not satisfy standards for expert report under 74.001–74.507. Medical Liability Act, because it did not state the standard of care, but, rather, only implied that it 2 Cases that cite this headnote was inconsistent with the defendant physicians' conduct. V.T.C.A., Civil Practice & Remedies [14] Health Code § 74.351(r)(6). Affidavits of merit or meritorious defense; 9 Cases that cite this headnote expert affidavits Goal of the Medical Liability Act's expert report requirement is to deter frivolous claims, and [18] Health inadequate expert report does not indicate a Affidavits of merit or meritorious defense; frivolous claim if the report's deficiencies are expert affidavits

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

Doctor's expert report, although deficient because it did not state the standard of care, was Attorneys and Law Firms not the legal equivalent of “no report” at all under *548 Eric Rene Reyes, Jason C.N. Smith, Art Brender, Fort Medical Liability Act, given that there was no Worth, for Catarino Santillan. question that, in doctor's expert opinion, patient's health care liability claim against defendant *549 Michael Alan Yanof, Philipa Remington, Dallas, for physicians had merit, and since the report was Tyler Scoresby, M.D. served within the statutory 120 day deadline, trial court had authority under Act to grant patient Randy J. Hall, David Leon Pratt II, Fort Worth, for Yadranko an additional 30 days to cure deficiencies in Ducic, M.D. the expert report. V.T.C.A., Civil Practice & Remedies Code § 74.351(a–c). Opinion

Justice HECHT delivered the opinion of the Court, in 29 Cases that cite this headnote which Chief Justice JEFFERSON, Justice MEDINA, Justice GREEN, Justice WILLETT, Justice GUZMAN, and Justice [19] Appeal and Error LEHRMANN joined. On motions relating to pleadings Health [1] [2] [3] The Medical Liability Act 1 entitles a Affidavits of merit or meritorious defense; defendant to dismissal of a health care liability claim if, expert affidavits within 120 days of the date suit was filed, he is not served Although doctor's expert report was deficient, with an expert report showing that the claim against him has because it did not state the standard of care, it merit. 2 The trial court's refusal to dismiss is immediately was possible to cure deficiencies in the expert appealable. 3 The Act sets specific requirements for an report, and thus, trial court granted patient an adequate report 4 and mandates that “an objective good additional 30 days to cure deficiencies in the expert report, and trial court's decision granting faith effort [be made] to comply” with them, 5 but it also patient an additional 30 days to cure deficiencies, authorizes the trial court to give a plaintiff who meets the and denying the defendant physicians' motions 120–day deadline an additional thirty days in which to cure to dismiss patient's health care liability claim, a “deficiency” in the elements of the report. 6 The trial court were not appealable before the 30 day period had should err on the side of granting the additional time 7 and expired. V.T.C.A., Civil Practice & Remedies must grant it if the deficiencies are curable. 8 The defendant Code § 74.351(a–c), (r)(6). cannot seek review of this ruling 9 or appeal the court's 14 Cases that cite this headnote concomitant refusal to dismiss the claim before the thirty-day period has expired. 10 [20] Health Affidavits of merit or meritorious defense; 1 TEX. CIV. PRAC. & REM.CODE §§ 74.001–.507. All expert affidavits references to the Act are to these provisions. Medical Liability Act requires that expert's 2 Id. § 74.351(b). knowledge, training or experience, and practice 3 Id. § 51.014(a)(9); Badiga v. Lopez, 274 S.W.3d 681, 685 be relevant to patient's claim. V.T.C.A., Civil Practice & Remedies Code § 74.351(r)(6). (Tex.2009). 4 TEX. CIV. PRAC. & REM.CODE § 74.351(r)(6). Cases that cite this headnote 5 Id. § 74.351(l ). 6 Id. § 74.351(c).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

7 Samlowski v. Wooten, 332 S.W.3d 404, 411 (Tex.2011) to stop the bleeding, resulting in brain damage and partial (plurality op. of Medina, J., joined by Jefferson, C.J., paralysis. and Hecht, J.) (“ ‘[T]rial courts should err on the side of granting claimants' extensions to show the merits of To satisfy the Act's expert report requirement, Santillan their claims.’ ” (quoting id. at 416 (Guzman, J., joined by timely served the Physicians with a letter from Dr. Charles Lehrmann, J., concurring in the judgment))). D. Marable to Santillan's attorney. The letter did not attach 8 Marable's curriculum vitae or describe his credentials or Id. at 411 (plurality op. of Medina, J., joined by Jefferson, experience other than to state that he is “a Board–Certified C.J., and Hecht, J.); id. at 416 (Guzman, J., joined by Lehrmann, J., concurring in the judgment). neurologist”. From having examined Samuel and reviewed his medical records, Marable explained his condition as 9 TEX. CIV. PRAC. & REM.CODE § 51.014(a)(9) follows: (no interlocutory appeal); In re Watkins, 279 S.W.3d 633, 634 (Tex.2009) (orig.proceeding) (no review by The patient was initially seen on 8/3/07. He is now mandamus). a 17–year–old Latin–American male who was taken to 10 John Peter Smith on 1/17/06 for a preoperative diagnosis Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007). of maxillary sinus neoplasm under the care of Dr. [4] [5] [6] While the Act thus contemplates that a Yadro Ducic, M.D., an ENT physician, and another document can be considered an expert report despite its surgeon, Dr. Tyler Scorsby [sic], with procedures of deficiencies, the Act does not suggest that a document left mediomaxillectomy [sic], excision of neoplasm of utterly devoid of substantive content will qualify as an expert the maxilla, calvarial bone growth and reconstruction of report. Based on the Act's text and stated purposes, we hold maxilla and excision of tumor of pterygopalatin [sic] that a document qualifies as an expert report if it contains structures. During the procedure, an incision was made in a statement of opinion by an individual with expertise the right parietal region in a coronal fashion and carried indicating that the claim asserted by the plaintiff against down the pericranium. As a result of this, there was cortical the defendant has merit. An individual's lack of relevant laceration with active bleeding from several medium size qualifications and an opinion's inadequacies are deficiencies vessels in the area. the plaintiff should be given an opportunity to cure if it is possible to do so. This lenient standard avoids the expense According to Dr. Scorsby's [sic] note, the patient awoke in and delay of multiple interlocutory appeals and assures a the operating room without complications and was taken claimant a fair opportunity to demonstrate that his claim is to the post anesthesia care unit. However, on awakening not frivolous. The expert report before us meets this test, he did not have a normal neurologic exam, in fact, had a and therefore the trial court's order allowing thirty days to right-sided hemiparesis, and due to the progression of his cure deficiencies and denying the defendants' motions to neurological deficit, increasing intercerebral hemorrhage dismiss were not appealable. Accordingly, we affirm the was noted by CT scanning. court of appeals' judgment dismissing the appeal for want of He was taken back to the operating suite on 1/18/06 by jurisdiction. 11 Dr. Gregory Smith, D.O., a neurosurgeon. Dr. Smith's preoperative diagnosis was that of expanding inter-cerebral 11 287 S.W.3d 319 (Tex.App.-Fort Worth 2009). hematoma, status post split thickness skull harvesting, with postoperative diagnosis of expanding intercerebral hematoma and intercerebral hematoma skull perforation. *550 I Procedure performed was that of a left parietal craniotomy with evacuation of intercerebral hematoma, repair and On behalf of Samuel Santillan, a minor, Catarino Santillan hemostasis. Dr. Smith's operative report states there was sued Dr. Tyler Scoresby and Dr. Yadranko Ducic, cortical laceration with active bleeding from several two otolaryngology (ENT) surgeons (collectively, “the medium-sized vessels in the left parietal area, which Physicians”), alleging that they negligently performed a were then cauterized with bipolar cautery for hemostatis. medial maxillectomy to remove growths from Samuel's sinus An underlying intercerebral hematoma was entered and cavity. Santillan asserts that an incision made too far into eventually evacuated successfully with suction. Samuel's brain lacerated a blood vessel and required surgery

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

*** Marable's curriculum vitae was not included, as the Act requires. 12 The Physicians argued Marable's letter was so It appears he was in the hospital until 2/11/06, and at woefully deficient, it did not even qualify as an expert report that time was transferred to HealthSouth Rehabilitation under the Act to meet the 120–day deadline. They moved the Hospital, Cityview, admitted on 2/11/06, date of discharge court to dismiss the case with prejudice and award them their 2/21/06. He was discharged with the diagnosis of left reasonable attorney fees and costs. parietal hemorrhage, maxillary sinus tumor resection, right hemiparesis, persistent pain, apraxia, seizure prophylaxis, 12 TEX. CIV. PRAC. & REM.CODE § 74.351(a). peptic ulcer prophylaxis and right hemisensory deficit. During his stay at HealthSouth Hospital he progressed in After the 120–day deadline, Santillan served the Physicians all areas of mobilization and self-care. He was ambulating with Marable's curriculum vitae and his amended report, greater than 400′, but still had significant right upper in which he added that “the applicable standard of care extremity weakness and spasticity. It was then deemed would have been to perform the procedure of a calvaria bone necessary to transfer him to an outpatient brain injury transplant without nicking or lacerating the parietal cortex program and work on his strength, cognition and overall [and] to get the appropriate surgeon, such as a neurosurgeon, mobilization.... instead of an ENT physician to do a calvaria bone grafting procedure”, and that “Dr. Ducic and Dr. Scorsby [sic] ... *551 He was seen on 8/3/07. He still has weakness of his failed to perform a careful and well-planned surgery, causing right arm and leg. Walking seems to still be a problem.... a laceration of the cortical hemisphere, causing substantial He is still having headaches in the occipital region. bleeding”. At the hearing on the Physicians' objections and Marable's letter concluded: motions, the trial court refused to consider Marable's post- deadline amended report. The Physicians complained that As a Board–Certified neurologist, my Marable's original letter did not show that he had sufficient opinion is that Dr. Ducic violated qualifications and experience to render an opinion regarding the standards of care, as well as the surgery, and did not define the standard of care, state how Dr. Scorsby [sic], and as a result it was breached, or explain how a breach resulted in Samuel's his damages are that of a right-sided injuries. The Physicians acknowledged that Samuel suffered hemiparesis with possibility of seizure a lacerated artery but argued that such things are inevitable in foci in the future. Although he has surgery, no matter how carefully it is performed, and do not not had any seizures, he certainly does necessarily indicate a breach of the standard of care. The trial meet the criteria for a seizure disorder. court denied the motions to dismiss and granted Santillan a Had it not been for Dr. Ducic and thirty-day extension to cure deficiencies in the report. Dr. Scorsby's [sic] negligent activity in causing cortical laceration of this The Physicians appealed, persisting in their contention that patient's left parietal lobe, he would Marable's letter was too inadequate to qualify as an expert not have needed further hospitalization report; therefore, Santillan had not met the 120–day deadline; at John Peter Smith or the ICU therapy, and consequently, the Act did not permit an additional thirty or going to HealthSouth Rehab, and is days to cure the deficiencies but instead required that the now left with a right hemiparesis at a case be dismissed. 13 The court of appeals construed our young age. analysis in Ogletree v. Matthews 14 to mean that deficiencies *552 in a document tendered as an expert report will not The Physicians each timely objected that the letter was preclude it from qualifying as such. 15 The court concluded inadequate as an expert report, asserting that: (i) a neurologist that an interlocutory appeal in these circumstances was not is not qualified to testify regarding the standard of care for an ENT surgeon in performing the procedures the Physicians permitted. 16 performed on Samuel; (ii) Marable's opinions regarding the Physicians' standard of care, breach, and causal relationship 13 287 S.W.3d at 320. to Samuel's injuries were conclusory and directed to Scoresby 14 262 S.W.3d 316. and Ducic collectively rather than individually; and (iii)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

15 287 S.W.3d at 324. 22 1977 Act, § 1.02(b)(1)–(3), (5). 16 Id. at 325. In 2003, the Legislature replaced the MLIIA with the Medical Liability Act, repeating its 1977 findings and statements of We granted the Physicians' petitions for review. 17 purpose. 23

17 53 Tex.Sup.Ct.J. 1061 (Aug. 27, 2010). We have 23 Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, jurisdiction to determine whether the court of appeals 10.09, 10.11, 2003 Tex. Gen. Laws 847, 864–882, 884– had jurisdiction. Tex. Dep't of Criminal Justice v. Simons, 885. 140 S.W.3d 338, 343 (Tex.2004). [7] Fundamentally, the goal of the MLIIA and the Medical While this appeal has been pending, the Physicians have Liability Act has been to make health care in Texas more lodged essentially the same objections to Santillan's amended available and less expensive by reducing the cost of health report as they made to the original report. They have also care liability claims. To that end, both statutes have sought moved again for dismissal, attorney fees, and costs. The trial to deter frivolous lawsuits by requiring a claimant early in court has not ruled on those objections and motions. litigation to produce the opinion of a suitable expert that his claim has merit. “[E]liciting an expert's opinions early in the litigation [is] an obvious place to start in attempting to reduce II frivolous lawsuits” 24 and thereby reduce the costs of claims. The Legislature enacted the Medical Liability and Insurance 24 Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 Improvement Act (“MLIIA”) in 1977 18 in response to “a S.W.3d 873, 877 (Tex.2001). medical malpractice insurance crisis in the State of Texas” that was having “a material adverse effect on the delivery The Legislature first added an expert report requirement of medical and health care in Texas, including significant to the MLIIA in 1993, then strengthened it over the next reductions of availability of medical and health care services ten years, finally allowing interlocutory appeals to ensure to the people of Texas and a likelihood of further reductions uniform enforcement. We *553 look first at the requirement, then the appeal, and finally at their proper operation together. in the future”. 19 The Legislature found that the crisis had been created by an “inordinate[ ]” increase in the volume and expense of health care liability claims. 20 Concerned that “the direct cost of medical care to the patient and public of Texas A

ha[d] materially increased”, 21 the Legislature's purpose in The 1993 amendment to the MLIIA required a plaintiff, the MLIIA, expressly stated, was to within ninety days of filing suit, either to file an affidavit that he had obtained a suitable expert's opinion that his claim 18 Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 had merit or to post a $2,000 bond or cash deposit. 25 The Tex. Gen. Laws 2039, formerly TEX.REV.CIV. STAT. trial court could extend the deadline for up to ninety days ANN.. art. 4590i [hereinafter 1977 Act]. “for good cause shown”. 26 A plaintiff who failed to comply 19 1977 Act, § 1.02(a)(5)–(6). risked dismissal without prejudice and liability for costs, 20 1977 Act, § 1.02(a)(1)–(5). again, except for “good cause ... shown”. 27

21 1977 Act, § 1.02(a)(8). 25 Act of May 25, 1993, 73rd Leg., R.S., ch. 625, § 3, 1993 Tex. Gen. Laws 2347, 2347, formerly TEX.REV.CIV. reduce excessive frequency and severity of health care STAT. ANN.. art. 4590i, § 13.01(a)–(b) [hereinafter liability claims [,] ... decrease the cost of those claims[,] ... 1993 Act]. do so in a manner that will not unduly restrict a claimant's 26 1993 Act, former art. 4590i, § 13.01(d). rights any more than necessary to deal with the crisis[, and thereby] ... make affordable medical and health care more 27 1993 Act, former art. 4590i, § 13.01(c). 22 accessible and available to the citizens of Texas....

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

In 1995, the Legislature required that the expert report itself 36 TEX. CIV. PRAC. & REM.CODE § 74.351(a). be filed and raised the amount of the bond or deposit posted 37 Id. § 74.351(r)(6). in lieu of a report to $5,000. 28 The amendment retained the ninety-day initial deadline but added that even if a bond 38 Id. §§ 74.351(r)(5), 74.401–.403. or deposit were posted, an expert report and curriculum The Act now distinguishes between missing a deadline vitae must be filed within 180 days of initiating suit. 29 altogether and serving an inadequate report. Section The amendment specified the qualifications the expert was 74.351(b) provides that required to have 30 and defined the report as one “provid[ing] a fair summary of the expert's opinions ... regarding [i]f, as to a defendant ..., an expert report has not been applicable standards of care, the manner in which the care served [by the deadline], the court, on the motion of the rendered by the physician or health care provider failed to *554 [defendant], shall, subject to Subsection (c), enter meet the standards, and the causal relationship between that an order that:

failure and the injury, harm, or damages claimed.” 31 The (1) awards [the defendant] reasonable attorney's fees and failure to make “a good faith effort” to comply 32 could costs of court ...; and result in dismissal with prejudice and liability for attorney (2) dismisses the claim with respect to the [defendant] with fees as well as costs. 33 But if the failure—even missing the prejudice to the refiling of the claim. 39 deadline completely 34 —was “not intentional or the result of conscious indifference but was the result of an accident or 39 Id. § 74.351(b). mistake,” the trial court was required to grant “a grace period of 30 days to permit the claimant to comply”. 35 Under section 74.351(l ), the same consequences attend serving an inadequate report that “does not represent an 28 objective good faith effort” to comply with the Act's Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986, formerly TEX.REV.CIV. requirements. 40 But before those consequences are imposed, STAT. ANN.. art. 4590i, § 13.01(a) [hereinafter 1995 the Act provides an opportunity for deficiencies to be Act]. cured. Section 74.351(a) requires that any objection to the 29 sufficiency of a report be lodged within twenty-one days of 1995 Act, former art. 4590i, § 13.01(d). service, 41 and section 74.351(c) provides: 30 1995 Act, former art. 4590i, §§ 13.01(r)(5) & 14.01. 31 40 Id. § 74.351(l ). 1995 Act, former art. 4590i, § 13.01(r)(6). 32 41 Id. § 74.351(a). 1995 Act, former art. 4590i, § 13.01(l ). 33 1995 Act, former art. 4590i, § 13.01(e). If an expert report has not been served [by the deadline] 34 because elements of the report are found deficient, the court Stockton v. Offenbach, 336 S.W.3d 610, 616 (Tex.2011) ( “Under article 4590i, a plaintiff could obtain an may grant one 30–day extension to the claimant in order to extension, even when no report was provided by the cure the deficiency.” 42 deadline, if the plaintiff could show an ‘accident or 42 TEX. CIV. PRAC. & REM.CODE § 74.351(c). mistake’ in failing to furnish a timely report.”). [8] [9] [10] The Act's thirty-day extension to cure 35 1995 Act, former art. 4590i, § 13.01(g). deficiencies replaces the 1995 law's thirty-day “grace period” The Medical Liability Act, adopted in 2003 and now in effect, for “accident or mistake”, shifting the focus from the eliminates the bond/deposit alternative, shortens the deadline claimant's conduct to the report's contents. But the importance for the expert report and curriculum vitae to 120 days (unless of an appropriate delay in finally dismissing a claim for extended by agreement), and requires service rather than want of an adequate report is undiminished. The purpose of filing. 36 The Act retains the definition of an expert report 37 the expert report requirement is to deter frivolous claims, 43 not to dispose of claims regardless of their merits. “The but is more specific about an expert's qualifications. 38 Legislature has determined that failing to timely file an expert

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

report, or filing a report that does not evidence a good-faith extension under Section 74.351”. 48 In a series of cases, we effort to comply with the definition of an expert report, means have explained the limits of this review mechanism. that the claim is either frivolous, or at best has been brought prematurely.” 44 But the Legislature has likewise recognized 47 In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461–462 that when an expert report can be cured in thirty days, the (Tex.2008). claim is not frivolous. It must be remembered that “ ‘[t]here 48 TEX. CIV. PRAC. & REM.CODE § 51.014(a)(9); Act are constitutional limitations upon the power of courts ... to dismiss an action without affording a party the opportunity for of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.03, 2003 Tex. Gen. Laws 847, 849. a hearing on the merits of his cause’ ”, 45 and those limitations constrain the Legislature no less in requiring dismissal. If an expert report is timely served, even without a curriculum vitae, we held in Ogletree v. Matthews that the 43 trial court's denial of a motion to dismiss, asserting the Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 report's inadequacy, cannot be appealed if the court also S.W.3d 873, 878 (Tex.2001) (“And one purpose of the expert-report requirement is to deter frivolous claims.”). grants a thirty-day extension to cure deficiencies. 49 “This

44 prohibition,” we said, “is both logical and practical.” 50 Id. Otherwise, 45 TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991) (quoting Societe 49 262 S.W.3d at 321. Internationale v. Rogers, 357 U.S. 197, 209–210, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958), citing Hammond 50 Id. Packing Co. v. Arkansas, 212 U.S. 322, 350–351, 29 S.Ct. 370, 53 L.Ed. 530 (1909), and Hovey v. Elliott, 167 the court of appeals would address the report's sufficiency U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897); accord Ins. while its deficiencies were presumably being cured at the Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, trial court level, an illogical and wasteful result. Moreover, 456 U.S. 694, 705–706, 102 S.Ct. 2099, 72 L.Ed.2d 492 because the Legislature authorized a single, thirty day (1982)); see also Walker v. Gutierrez, 111 S.W.3d 56, 66 extension for deficient reports, health care providers (Tex.2003). face only a minimal delay before a report's sufficiency For these reasons, we have held that trial courts should may again be challenged and the case dismissed, if be lenient in granting thirty-day extensions and must do warranted. 51 so if deficiencies in an expert report can be cured within 51 Id. the thirty-day period. This “minimal delay before a report's sufficiency may again be challenged and the case dismissed, If after an extension has been granted, the defendant again 46 moves to dismiss, we held in Lewis v. Funderburk that a if warranted” does not impair the purpose of the Act. denial of the motion is appealable. 52 46 Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007). 52 253 S.W.3d 204, 207–208 (Tex.2008). If no expert report is timely served, we held in Badiga v. B Lopez that the denial of a motion to dismiss is appealable, Under the MLIIA, there was no interlocutory appeal from even if the court grants an extension. 53 The Medical Liability the denial of a motion *555 to dismiss a health care Act, unlike the MLIIA, does not authorize an extension if no liability claim for failure to comply with the expert report report is timely served. Granting an extension not authorized requirement, and we did not make clear until 2008 that by section 74.351 does not preclude appeal. But because an review by mandamus was available. 47 In adopting the appeal is available, we held in In re Watkins that review by Medical Liability Act in 2003, the Legislature permitted an mandamus is not available. 54 interlocutory appeal from an order denying “all or part of the relief sought by a motion under Section 74.351(b), except 53 274 S.W.3d 681, 685 (Tex.2009). that an appeal may not be taken from an order granting an

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

54 279 S.W.3d 633, 634 (Tex.2009). all the elements, 62 and omissions may not be supplied by The present case requires us to determine whether a document inference. 63 served on a defendant can be so lacking in substance that it does not qualify as an expert report, and therefore an 59 Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 immediate appeal from the denial of a motion to dismiss is (Tex.2002) (per curiam) (“[A] report's adequacy does available under Badiga. not depend on whether the expert uses any particular ‘magical words.’ ”). 60 Palacios, 46 S.W.3d at 879 (“The report can be informal C in that the information in the report does not have to meet the same requirements as the evidence offered in a [11] The Act defines an expert report to be summary-judgment proceeding or at trial.”).

a written report by an expert that 61 Id. (“A report that merely states the expert's conclusions provides a fair summary of the expert's about the standard of care, breach, and causation does not opinions as of the date of the report fulfill these two purposes.”). regarding applicable standards of care, 62 Id. (“Nor can a report meet these purposes and thus the manner in which the care rendered constitute a good-faith effort if it omits any of the by the physician or health care statutory requirements.”). provider failed to meet the standards, 63 See Bowie Mem'l Hosp., 79 S.W.3d at 53 (“[T]he report and the causal relationship between that failure and the injury, harm, or must include the required information within its four corners.”). damages claimed. 55 [12] But as we have seen, the Act allows a claimant a thirty- day period to cure deficiencies before the trial court finally 55 TEX. CIV. PRAC. & REM.CODE § 74.351(r)(6). determines that the report is inadequate and the claim must The qualifications and experience necessary for an expert be dismissed. In Ogletree, we rejected the argument that a are prescribed in great detail. 56 The adequacy of a report is deficient report is no report. 64 There, the claimant provided determined by whether it “represent[s] an objective good faith the opinion of a radiologist, without a curriculum vitae, on a effort to comply” with *556 the statutory definition. 57 As urologist's standard of care. 65 Dr. Ogletree argued that the we have explained: report was really no report at all, but we held that despite its shortcomings, it “implicated Dr. Ogletree's conduct”, so that 56 Id. §§ 74.351(r)(5), 74.401–.403. the trial court was authorized to grant a thirty-day extension,

57 and an appeal was prohibited. 66 Id. § 74.351(l ).

64 Ogletree v. Matthews, 262 S.W.3d 316, 320–321 In setting out the expert's opinions on each of those (Tex.2007). elements, the report must provide enough information to fulfill two purposes if it is to constitute a good-faith effort. 65 Id. at 318. First, the report must inform the defendant of the specific 66 Id. at 321. conduct the plaintiff has called into question. Second, and equally important, the report must provide a basis for the [13] [14] Ogletree's holding, though sound, can be 58 extended only so far. To stretch the meaning of deficient trial court to conclude that the claims have merit. 58 to include a sheet of paper with the two words, “expert Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 report”, written on it would mock the Act's requirements. The S.W.3d 873, 879 (Tex.2001). expert report in Lewis was substantively no more than that No particular words 59 or formality 60 are required, but bare —one physician's thank-you letter to another for referring conclusions will not suffice. 61 The report must address the patient. 67 In determining where to draw the line, we are guided by two considerations. One is that the Act's principal

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

purpose is to reduce the expense of health care liability trial court did not specifically address the matter, and it is claims. The Legislature could reasonably have determined premature for us to consider it. But the dissent's arguments, that that purpose is served by an interlocutory appeal from the we believe, show the wisdom of our approach in determining denial of a motion to dismiss for want of an adequate expert what qualifies as an expert report. report, but as we observed in Ogletree, permitting two such appeals—one before the thirty-day cure period and one after 68 See TEX. CIV. PRAC. & REM.CODE § § 74.351(r)(5), —is simply wasteful. The other consideration is the goal of 74.401(a), (c). the Act's expert report requirement: to deter frivolous claims. The dissent acknowledges that, as in Ogletree, a radiologist An inadequate expert report does not indicate a frivolous is qualified to opine on “whether the urologist should claim if the report's deficiencies are readily curable. have involved radiology-related devices and techniques (the specialty in which the expert was qualified) in treating 67 Lewis v. Funderburk, 191 S.W.3d 756, 762–763 the patient and whether the failure to do so resulted in (Tex.App.-Waco 2006) (Gray, C.J., dissenting), rev'd, injury.” 69 In that instance, the dissent contends, there is an 253 S.W.3d 204 (Tex.2008). “apparent closely-related connection” between radiology and *557 [15] [16] We conclude that a thirty-day extension neurology. 70 The dissent sees no such connection between to cure deficiencies in an expert report may be granted if the report is served by the statutory deadline, if it contains neurology and ENT surgery that damages the brain. 71 But the opinion of an individual with expertise that the claim surely a neurologist's expertise is relevant in explaining has merit, and if the defendant's conduct is implicated. We the connection between the Physicians' injury to blood recognize that this is a minimal standard, but we think it is vessels during surgery and the hemiparesis and weakness necessary if multiple interlocutory appeals are to be avoided, Simon suffered. What further relevance that expertise has to and appropriate to give a claimant the opportunity provided Santillan's claim should first be addressed by the trial court. by the Act's thirty-day extension to show that a claim has In no event, however, do we think a claimant's opportunity to merit. All deficiencies, whether in the expert's opinions or cure and a defendant's immediate right to appeal should turn qualifications, are subject to being cured before an appeal may on such fine distinctions, either in an expert's qualifications be taken from the trial court's refusal to dismiss the case. or in his opinions.

69 Post at ––––.

III 70 Id.

[17] [18] [19] Dr. Marable's letter in this case easily 71 Id. meets this standard. Claiming expertise as a neurologist, This case also demonstrates the difficulty with any more he described the injury to Samuel's brain, ascribed it to stringent standard. The trial court denied the Physicians' the Physicians' breach of the standards of care, and stated motions to dismiss and ordered that Santillan have a thirty- that their breach caused Samuel's partial paralysis and other day extension to cure deficiencies in Dr. Marable's report lingering debilities. As an expert report, Dr. Marable's letter nearly three years ago. Santillan had already served an was deficient. For example, it did not state the standard amended report, in response to which the Physicians had filed of care but only implied that it was inconsistent with the renewed objections *558 and again moved to dismiss the Physicians' conduct. But there is no question that in his case. Now that we have dismissed this appeal for want of opinion, Santillan's claim against the Physicians has merit. jurisdiction, the trial court will rule on the objections to the amended report and the motions to dismiss. Whatever the [20] The dissent argues that Dr. Marable was not qualified ruling, another appeal will undoubtedly follow. Our holding to give an opinion about the Physicians' conduct because he today will all but eliminate the first, wasteful appeal. Just as is only a neurologist, not a surgeon, and therefore his letter is importantly, it will help assure that a claimant, after being so deficient it does not qualify as an expert report. The Act apprised of a defendant's objections to an expert report, and requires that Dr. Marable's knowledge, training or experience, having had an opportunity to discuss those objections at a and practice be “relevant” to Santillan's claim. 68 We express hearing before the trial court, will have a fair opportunity to no view on the adequacy of Dr. Marable's qualifications; the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

cure any deficiencies and demonstrate that his claim is not 4 In re Watkins, 279 S.W.3d 633, 636 (Tex.2009) (Willett, frivolous and should be determined on the merits. J., concurring). In Ogletree v. Matthews, I described what I naively hoped *** would be “a rare bird in Texas legal practice” 5 —a plaintiff Accordingly, the judgment of the court of appeals dismissing passing off as a bona fide report a document so facially absurd this appeal for want of jurisdiction is that, “no matter how charitably viewed, it simply cannot be deemed an ‘expert report’ at all, even a deficient one.” 6 The Affirmed. deficient-or-no-report issue was not present in Ogletree, but I noticed it in another then-pending case, Lewis v. Funderburk, filed one week before Ogletree. 7 Justice WILLETT filed a concurring opinion. 5 262 S.W.3d at 324 (Willett, J., concurring). Justice JOHNSON filed a dissenting opinion, in which Justice WAINWRIGHT joined. 6 Id. at 323. 7 Funderburk, 253 S.W.3d at 209 (Willett, J., concurring). Justice WILLETT, concurring. In Funderburk, the Court confronted “an actual sighting of Since 2006 we have circled an issue both recurring and this rare bird, a species that in my view merits extinction, elusive: whether any document, even one that never accuses not conservation.” 8 The “report” in Funderburk was a thank- anyone of committing malpractice, suffices to warrant an you letter from one *559 doctor to another—a letter that unreviewable thirty-day extension under Section 74.351(c). 1 never once in any manner, way, shape, or form accused Until today, the issue was procedurally (and frustratingly) anyone of malpractice. 9 This thanks-for-your-referral letter unreachable and thus unresolvable. Finally it is squarely was no more a medical-expert report “than a doctor-signed presented, and I am confident today's decision will brighten prescription or Christmas card would be,” I wrote, adding, “If the line between deficient-report cases (where an extension a report is missed, not just amiss, courts are remiss if they is discretionary) and no-report cases (where dismissal is mandatory). do not dismiss.” 10 Alas, the defendant did not raise the “no report” issue, thus foreclosing a merits-based challenge. 11 1 See TEX. CIV. PRAC. & REM.CODE § 74.351(c). *** 8 Id.

In a trio of concurrences in 2007, 2 2008, 3 and 2009, 4 I 9 The letter is reproduced in its entirety in Chief Justice focused on this nagging question: Is there a legal difference Gray's dissent in the court of appeals. See Lewis v. between filing nothing and filing something that amounts to Funderburk, 191 S.W.3d 756, 762–63 (Tex.App.-Waco nothing? That is, can a filing be so utterly lacking in the 2006) (Gray, C.J., dissenting), rev'd, 253 S.W.3d 204 required statutory elements as to be no report at all, thus (Tex.2008). requiring dismissal? I join today's decision, which I read to 10 Funderburk, 253 S.W.3d at 210–11 (Willett, J., confirm my consistently stated view: If a document bears zero concurring). resemblance to what the statute envisions—more to the point, if it never asserts that anyone did anything wrong—it cannot 11 Id. at 208 (majority opinion) (“We do not reach the receive an extension. question addressed in the concurring opinions here because it is not raised. As stated in his reply brief, 2 ‘[Dr.] Lewis has made it abundantly clear that he is Ogletree v. Matthews, 262 S.W.3d 316, 323 (Tex.2007) not appealing the trial court's [initial] order (no matter (Willett, J., concurring). how vehemently he disagrees with it),’ but instead is 3 Lewis v. Funderburk, 253 S.W.3d 204, 210 (Tex.2008) only appealing the order denying his second motion to (Willett, J., concurring). dismiss.”). Finally came In re Watkins, where a plaintiff merely filed a narrative of treatment, something that omitted every

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

statutorily required element and had no apparent relationship malpractice case at all—no mention of a claim or a defendant, 12 much less a claim that “an individual with expertise” indicates to a medical-malpractice case. Like Funderburk, this case also had a procedural wrinkle that kept the marquee “has merit.” 18 “no report” vs. “deficient report” issue out of reach. 13 But the rare-bird sightings, I noticed, were becoming 15 346 S.W.3d 546, 549. more commonplace. And they would proliferate on our 16 Id. at 549. docket, I predicted, absent appellate enforcement of the statute's mandatory-dismissal provision 14 —or alternatively, 17 262 S.W.3d at 321 (“Because a report that implicated this Court's express adoption of a grace-period test that is Dr. Ogletree's conduct was served and the trial court indeed gracious, allowing extensions for most everything. granted an extension, the court of appeals could not reach the merits of the motion to dismiss.”) (emphasis added). 12 279 S.W.3d at 637 (Willett, J., concurring). 18 346 S.W.3d at 549. The narrative in In re Watkins might also fail today's test, as it lacked every required statutory 13 Id. at 634 (majority opinion) (“The separate writings join element, though unlike the referral letter in Funderburk, issue again today on the question whether the item served it at least mentions (twice) the defendant physician's was a deficient report or no report at all. But here it name. does not matter. If no report was served, interlocutory *** appeal was available, so mandamus is unnecessary. If the report was merely deficient, then an interlocutory Based on my understanding of the Court's “minimal appeal was prohibited, and granting mandamus to review standard” 19 —requiring that someone with expertise express it would subvert the Legislature's limit on such review.”) an opinion that the plaintiff has a meritorious malpractice (citations omitted). claim against the defendant—I join the Court's decision. 14 My sense is that such sightings have indeed grown more prevalent, making Chapter 74 defendants perhaps 19 Id. at 557. “identify with the seaside residents of Bodega Bay, besieged by avian attacks,” In re Watkins, 279 S.W.3d at 637 n. 13 (Willett, J., concurring) (citing THE BIRDS Justice JOHNSON, joined by Justice WAINWRIGHT, (Universal Pictures 1963)), or else those Arkansans who dissenting. witnessed the so-called Aflockalypse last New Year's The Court says that a plaintiff who timely files a defective Eve, when thousands of blackbirds and starlings fell expert report is eligible for an extension of time to cure the mysteriously from the skies. report if Under the Court's admittedly “lenient standard,” 15 the [the report] contains a statement document must merely “[contain] a statement of opinion of opinion by an individual with by an individual with expertise indicating that the claim expertise indicating that the claim asserted by the plaintiff against the defendant has merit.” 16 asserted by the plaintiff against the The line is forgiving but bright: The “report” must actually defendant has merit. An individual's allege someone committed malpractice. The genesis of this lack of relevant qualifications and an elemental requirement is found in Ogletree, where the Court opinion's inadequacies are deficiencies first indicated that the purported report must implicate a the plaintiff should be given an provider's conduct. 17 It merits emphasis, however, that opportunity to cure if it is possible to today's standard, benevolent as it is, is not satisfied by do so. any medical-related piece of paper; the bar is low but not subterranean. For example, the “report” in Funderburk would 346 S.W.3d 546, 549. In my view the Court's standard surely fail even today's lax test. The thank-you letter in that does not conform to requirements the Legislature imposed case never mentioned malpractice by anyone, *560 even in in authorizing an extension to cure a deficient report. I the most implicit or glancing manner. Again, it is not merely respectfully dissent. that the letter omitted every required statutory element. Rather, it never even hinted at having any relationship to a A trial court is statutorily authorized to grant an extension to cure elements of an expert report that are found deficient,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

not to cure a report that substantively is not a report, nor to TEX. CIV. PRAC. & REM.CODE § 74.351(r)(5)(A). cure a report from which elements are absent as opposed to Section 74.401 provides specific requirements for an deficient: expert to be qualified to provide the section 74.351 report:

(b) If, as to a defendant physician or health care provider, (a) In a suit involving a health care liability claim an expert report has not been served within the period against a physician for injury to or death of a patient, a specified by Subsection (a), the court, on the motion of the person may qualify as an expert witness on the issue of affected physician or health care provider, shall, subject to whether the physician departed from accepted standards Subsection (c), enter an order that: of medical care only if the person is a physician who:

(1) awards to the affected physician or health care (1) is practicing medicine at the time such testimony is provider reasonable attorney's fees and costs of court given or was practicing medicine at the time the claim incurred by the physician or health care provider; and arose;

(2) dismisses the claim with respect to the physician or (2) has knowledge of accepted standards of medical health care provider, with prejudice to the refiling of the care for the diagnosis, care, or treatment of the illness, claim. injury, or condition involved in the claim; and

(c) If an expert report has not been served within the period (3) is qualified on the basis of training or experience specified by Subsection to offer an expert opinion regarding those accepted standards of medical care. (a) because elements of the report are found deficient, the court may grant one 30–day extension to the claimant in Id. § 74.401(a). The Court has said that “[a] report order to cure the deficiency. by an unqualified expert will sometimes (though not always) reflect a good-faith effort sufficient to justify a TEX. CIV. PRAC. & REM.CODE § 74.351(b), (c); 1 see In 30–day extension.” In re Buster, 275 S.W.3d 475, 477 re Watkins, 279 S.W.3d 633, 634–35 (Tex.2009) (Johnson, J., (Tex.2008) (per curiam) (citing Leland v. Brandal, 257 concurring) (“The definition [of expert report] requires that S.W.3d 204, 208 (Tex.2008)). The Court has recognized for a document to qualify as a statutory expert report, it must that not every doctor is qualified to render an opinion demonstrate three things: (1) someone with relevant expertise about every aspect of medicine or medical science. In re (‘ “[e]xpert report” means a written report by an expert’), (2) McAllen Med. Ctr., Inc., 275 S.W.3d 458, 463 (Tex.2008); has an opinion (‘that provides a fair summary of the expert's Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996) opinions'), and (3) that the defendant was at fault for failing (“[G]iven the increasingly specialized and technical nature to meet applicable standards of care and thereby harmed the of medicine, there is no validity, if there ever was, to plaintiff....”). Absent an expert with relevant expertise, I do the notion that every licensed medical doctor should be not see *561 how there can be an expert report under the automatically qualified to testify as an expert on every statute, because the foundation of an expert report is the medical question.”). requirement that the report be by a qualified expert. “Expert” The Court's new test apparently allows a report to qualify for purposes of a report means: as a deficient report even if the report demonstrates none of the three requirements of section 74.401(a). The test requires 1 Further references to the Civil Practice and Remedies only that the person rendering the opinion have some type Code will be by referring to section numbers unless of undefined level of expertise. It abandons the requirements otherwise indicated. that the report show the expert (1) has knowledge of accepted standards of care for the diagnosis, care, or treatment of the [W]ith respect to a person giving opinion testimony illness, injury, or condition involved in the claim; and (2) regarding whether a physician departed from accepted qualifies on the basis of training or experience to offer an standards of medical care, an expert qualified to testify expert opinion regarding those accepted standards of medical under the requirements of Section 74.401.... care. See TEX. CIV. PRAC. & REM.CODE § 74.401(a)(2), (3). Nor does the test require a showing that the expert is practicing medicine or was doing so when the claim arose. See id. § 74.401(a)(1).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

In Ogletree v. Matthews, we considered a defendant's Dr. Marable's report says nothing about his surgical contention that no statutory expert report had been filed qualifications. The report does not give any facts or because the report was by a radiologist who was not qualified information which would qualify him to opine on the to express an opinion on the standard of care for a urologist. standards of care for the type of surgery performed in this 262 S.W.3d 316, 319 (Tex.2007). The urologist defendant case, and he did not attach a CV to the report. 2 The report had performed a urethral catheterization during which the was written on a letterhead showing that he maintains board patient suffered bruising and bladder perforation. Id. at certification in neurology *562 and psychiatry. In his report 317. We held that the radiologist's report was deficient, he makes it clear that he is basing his opinion on his expertise not absent. Id. at 320. But in Ogletree the radiologist was in neurology, not surgery: “As a board certified neurologist, opining about whether the urologist should have performed my opinion is that Dr. Ducic violated the standards of the catheterization under flouroscopic guidance in order to care, as well as Dr. Scoresby, and as a result [Santillan's] avoid or more timely diagnose the perforation. Id. at 318. In damages are that of a right-sided hemiparesis with possibility that instance, the radiologist was opining about whether the of seizure foci in the future.” The neurological expertise urologist should have involved radiology-related devices and on which Dr. Marable relies does not involve surgery. See techniques (the specialty in which the expert was qualified) WILSON STEGEMAN, MEDICAL TERMS SIMPLIFIED in treating the patient and whether the failure to do so resulted 106 (1976) (noting that neurologists do not perform surgery); in injury. The matter before us is different from Ogletree American Academy of Neurology, Working with Your because there is no apparent closely related connection Doctor, https://patients.aan.com/go/workingwithyourdoctor between the expertise involved in the specialty of neurology (last visited Apr. 18, 2011) (“Neurologists do not perform and the expertise involved in knowing how to perform, and surgery.”). Dr. Marable's report does not claim that he now performing, the surgery performed by Drs. Scoresby and performs or has in the past performed surgery, much less Ducic. this particular type of surgery. The report neither claims that he has knowledge of the standard of care for performing In McAllen Medical Center, 275 S.W.3d 458, we considered the surgery nor that he is qualified on the basis of training the validity of a doctor's expert reports in negligent or experience to offer an expert opinion on those standards credentialing suits against the medical center. McAllen of care. See TEX. CIV. PRAC. & REM.CODE 74.401(a) challenged the adequacy of the reports on the basis that (2), (3). The report does not say that he has participated in, the doctor was not qualified to express opinions as to the observed, or even read about how to do “procedures of left credentialing process. Id. at 462. We agreed with McAllen mediomaxillectomy, excision of neoplasm of the maxilla, and held that the reports were inadequate: calvarial bone growth and reconstruction of maxilla and On this record, the plaintiffs have not established Dr. excision of tumor of pterygopalatin structures,” which were Brown's qualifications. “The standard of care for a hospital the surgical procedures performed by Drs. Scoresby and is what an ordinarily prudent hospital *563 would do Ducic. 3 In short, nothing in Dr. Marable's report raises an under the same or similar circumstances.” Nothing in the inference that he is a qualified expert as to this type of surgery, record here shows how Dr. Brown is qualified to address as prescribed by statute, and the report is all that was before this standard. Nor can we infer that she may have some the trial court in regard to his qualifications. knowledge or expertise that is not included in the record.

2 An amended report by Dr. Marable with a CV attached Moreover, “a negligent credentialing claim involves a was filed on the day the defendants' motions to dismiss specialized standard of care” and “the health care industry were heard. The CV was not considered by the trial court, has developed various guidelines to govern a hospital's but it did not show that Dr. Marable had any training or credentialing process.” Dr. Brown's reports contain no expertise in the type of surgery involved here. reference to any of those guidelines, or any indication 3 that she has special knowledge, training, or experience Santillan's attorney represented during oral argument regarding this process. Nor was Dr. Brown qualified that he believed Dr. Marable's amended report contained merely because she is a physician; “given the increasingly statements by Dr. Marable that he had seen surgery of specialized and technical nature of medicine, there is no this type because he had treated patients after they had the surgery. validity, if there ever was, to the notion that every licensed

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 Scoresby v. Santillan, 346 S.W.3d 546 (2011) 54 Tex. Sup. Ct. J. 1413

The Court says that “ ‘there are constitutional limitations upon medical doctor should be automatically qualified to testify the power of courts ... to dismiss an action without affording as an expert on every medical question.” a party the opportunity for a hearing on the merits of his Id. at 463 (citations omitted). cause.’ ” 346 S.W.3d at 554 (quoting TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991)). I The substance of the issue before us is similar to the issue agree. But the statement does not fit here. First of all, the we decided in McAllen Medical Center. Dr. Marable's report constitutionality of the statute is not challenged. Second, indicates that the defendants violated standards of care for even if it were, the statutory requirement of a timely report the surgery and their negligent activity caused damages to by a qualified expert did not spring upon Santillan without Santillan. But Dr. Marable's report does not show he was warning. The requirement was in place before the surgery qualified under the statute to give such an expert opinion, took place in January 2006, while suit was not filed against the nor did his opinion about the surgeons' decisions and actions defendant doctors and Tarrant County Hospital until January during surgery involve his specialty except to the extent a 2008. Santillan had time to find a qualified expert to provide physician with his specialty would have been involved in the report required to show his claim had merit, if he could post-surgical care and possibly a decision to reoperate. find such an expert.

If Dr. Marable's report had in some manner demonstrated I would hold that failure to timely serve a report by an expert that he was qualified to render an opinion about the qualified under the statute is not merely a deficiency in an standard of care for the surgery involved, then I might element of the report, it is a deficiency going to the question of agree that his conclusory statements about the defendants whether the report is competent and is entitled to be given any having negligently violated applicable standards of care weight. And I would hold that it is not an expert report and the and those negligent activities having caused damages were filing of such a report supports inferences that a *564 proper sufficient to support an extension of time. But the report report by a qualified expert was not available, the claim lacks sets out his opinion as a neurologist, not a physician with merit, and the claim should be dismissed. surgical expertise. The Legislature did not intend that an expert report could be by a doctor with no demonstrated or I would reverse the judgment of the court of appeals and inferable experience and training in a practice area who reads dismiss the case. See Badiga v. Lopez, 274 S.W.3d 681, 684– medical records and writes a report containing the simplistic 85 (Tex.2009). indictments in the report here: the defendants negligently lacerated the brain and further surgery was required. See TEX. CIV. PRAC. & REM.CODE § 74.401(a). All Citations

346 S.W.3d 546, 54 Tex. Sup. Ct. J. 1413

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

The following summary of the plaintiff's hospital visit, during which he suffered a stroke, is taken from Dr. Nicolaos 2013 WL 1694869 Only the Westlaw citation is currently available. Madias's August 8, 2011 expert report 1 :

SEE TX R RAP RULE 47.2 FOR 1 For purposes of our review of the adequacy of a medical DESIGNATION AND SIGNING OF OPINIONS. expert report under Chapter 74, we take the allegations in the report as true.Marino v. Wilkins, ––– S.W.3d ––––, MEMORANDUM OPINION –––– n. 1, 2012 WL 749997, at *17 n. 1 (Tex.App.- Court of Appeals of Texas, Houston [1st Dist.] Mar, 8, 2012, pet. denied). Houston (1st Dist.). On November 14, 2008, 53 year-old plaintiff/appellee Glenn Cyril B. TAWA, M.D., Houston Gentry (Gentry) visited his primary physician, Dr. Keller, Interventional Cardiology, P.A., and complaining of fatigue and shortness of breath. Keller Angela Rowan, R.N. F.N.P. -C, Appellants determined that he had atrial fibrillation with a rapid v. ventricular rate. Keller sent Gentry to the Emergency Room at North Cypress Medical Center. Upon admittance, he was seen Glenn P. GENTRY and Patricia Gentry, Appellees. by defendant/appellant Dr. Cyril B. Tawa, M.D., the attending No. 01–12–00407–CV. | April 18, 2013. physician, and defendant/appellant Angela Rowan, Tawa's nurse practitioner. Gentry's primary complaint was heart On Appeal from the 333rd District Court, Harris County, palpitations and he was “found to have atrial fibrillation with Texas, Trial Court Case No.2011–05219. a ventricular rate of 130 beats per minute.”In the Emergency Room, Gentry was given “Cardizem bolus followed by a Attorneys and Law Firms Cardizem drip to control the ventricular rate.” Gordon M. Carver III, for Houston Interventional Cardiology, Upon admission, Gentry was taken off some of his regular PA, Cyril B. Tawa, M.D., Angela Rowan. medication and others were prescribed. Specifically, he was Matias J. Adrogue, for Patricia Gentry. “prescribed to discontinue Lovenox and Lisinopril; to take Toprol XL, Clonidine, started [on] a Heparin drip and Panel consists of Chief Justice RADACK and Justices Coumadin (warfarin).” The following three days, November HIGLEY and BROWN. 15, 16, and 17, Tawa ordered Coumadin be administered.

Several medical tests were performed on Gentry's heart MEMORANDUM OPINION and kidneys during his hospital stay. According to the records, Mr. Gentry had “elevated creatinine.” Tawa then SHERRY RADACK, Chief Justice. consulted with Dr. Lal, who determined that a kidney biopsy was necessary. “Medications that promote reversal *1 This is an interlocutory appeal from the denial of of Coumadin effects as well as infusion of coagulation facts appellants' motions to dismiss under Chapter 74 of the were prescribed on November 18, 2008, including vitamin K Texas Civil Practice and Remedies Code. We reverse the iv and FFP (fresh frozen plasma).”“Lal wrote in a Progress trial court's order denying appellants Angela Rowan's and Note on November 18 that a plan was made for a kidney Houston Interventional Cardiology's motion to dismiss (as it biopsy (Dr. Tawa, Dr. Keller, Dr. Morello, patient); FFP, vit relates to care provided by Rowan) and remand to the trial K iv; hold Coumadin and heparin.” court for assessment of attorneys' fees and costs. We affirm the trial court's order denying appellants Cyril Tawa's and The kidney biopsy was performed on November 19, 2008, Houston Interventional Cardiology's motion to dismiss (as it and later that day Gentry's records indicate he had a “CVA relates to care provided by Tawa). (cerebrovascular accident ) believed to be of ischemic origin with left hemiparesis, aphasia, lethargy.”“Impression and plan included: atrial fibrillation, embolism, not a candidate BACKGROUND for TPA because of recent kidney biopsy, MRI, and transfer to ICU,” where he “received a ‘heparin drip.” His

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

stroke“resulted in aphasia and weakness of left extremities.”A Section 74.351 of the Texas Civil Practice and Remedies neurology consultation that same night indicated that “Gentry Code requires the trial court perform a ‘gate-keeper’ function, had developed hemiplegia, probably cardio embolic and this to prevent medical negligence causes of actions from was discussed with Dr. Lal, Dr. Tawa, and his family, and proceeding unless the claimant has made a good-faith effort heparin infusion was prescribed.” to demonstrate that at least one expert believes that a breach of the applicable standard of care caused the claimed injury. *2 The medical records also describe the results of CT scans TTHR, L.P. v. Guyden, 326 S.W .3d 316, 319 (Tex.App.- of his heart and brain, and later ultrasound images of his Houston [1st Dist.] 2010, no pet.)(citing TEX. CIV. PRAC. & carotid and vertebral arteries.” At the time of his discharge REM.CODE ANN. § 74.351; Murphy v. Russell, 167 S.W.3d from the hospital on December 1, 2008, “Gentry had left- 835, 838 (Tex.2005)).“A report need not marshal all of the sided weakness, speech impairment, sitting up in a chair and plaintiff's proof but it must include the expert's opinions in normal sinus rhythm.” on the three statutory elements: standard of care, breach, and causation.”Id.; see Am. Transitional Care Centers v. Gentry and his wife, Patricia Gentry, sued Dr. Tawa, Dr. Palacios, 46 S.W.3d at 873, 880 (Tex.2001); Spitzer v. Berry, Lal, Rowan, and Houston Intervention Cardiology, P.A. 247 S.W.3d 747, 750 (Tex.App.-Tyler 2008, pet. denied) On June 14, 2011, pursuant to Chapter 74 of the Texas (quoting Palacios, 46 S.W.3d at 880) (stating “fair summary” Civil Practice and Remedies Code, the Gentrys served the is “something less than a full statement” of applicable defendants with an expert report and curriculum vitae (CV) standard of care, how it was breached, and how that breach of Dr. Nicolaos E. Madias, M.D. Defendants Tawa, Rowan, caused injury). and Houston Intervention Cardiology filed objections and motions to dismiss. The trial court overruled the objections, To constitute a good faith effort, the report must provide but granted the Gentrys 30 days to cure any deficiencies in enough information to fulfill two purposes: (1) inform the Madias's report. The Gentrys timely filed an Amended Expert defendant of the specific conduct that the plaintiff has called Report and CV. Tawa, Rowan, and Houston Intervention into question; and (2) provide a basis for the trial court to Cardiology filed objections again, as well as a motion conclude that the claims have merit. Palacios, 46 S.W.3d at to dismiss and request for attorneys' fees. The trial court 879. A report that merely states the expert's conclusions as denied defendants' motion, and Tawa, Rowan, and Houston to the standard of care, breach, and causation does not fulfill Intervention Cardiology timely brought this interlocutory, these two purposes. Id. The expert must explain the basis for accelerated appeal. his statements and link his conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). The trial court may not draw any inferences, but must rely exclusively ISSUES ON APPEAL on the information contained within the report's four corners. Appellants argue that Madias's amended report does not See TTHR, 326 S.W.3d at 319. In addition to setting forth the represent a good faith effort to comply with section 74.351(r) requisite criteria, a Chapter 74 report must also be authored (6) of the Texas Civil Practice and Remedies Code. by a qualified “expert.” TEX. CIV. PRAC. & REM.CODE Accordingly, appellants argue that the trial court abused its ANN. § 74.351(r)(6). discretion by overruling their objections to Madias's amended report, and by denying their motions to dismiss and refusing *3 We review a trial court's decision on a motion to dismiss to award attorneys' fees. Appellants seek reversal of the a case for failure to comply with section 74.351 for an abuse trial court's orders, dismissal with prejudice of the Gentrys' of discretion.Palacios, 46 S.W.3d at 877; Tex. Civ. Prac. & claims against appellants, and a remand to the trial court with Rem.Code Ann. § 74.351(Vernon Supp.2009). Although we instructions to award to appellants reasonable attorneys' fees defer to the trial court's factual determinations, we review and costs. questions of law de novo. Rittmer v. Garza, 65 S.W.3d 718, 722 (Tex.App.-Houston [14th Dist.] 2001, no pet.). To the extent that resolution of the issue before the trial court requires interpretation of the statute itself, we apply a de novo APPLICABLE LAW standard. Buck v. Blum, 130 S.W.3d 285, 290 (Tex.App.- Houston [14th Dist.] 2004, no pet.).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

with treating patients with fluctuating mental status gives him expertise regarding a hospital's ‘administrative decision’ about the circumstances under which a hospital can disregard DR. TAWA a doctor's discharge order.”Id. at 536.It thus held that the In appellants' first issue, they argue that the trial court abused expert's report did not demonstrate that he was qualified its discretion in failing to find Madias's report deficient as to opine on the hospital's standard of care in making it relates to Tawa (and to the vicarious liability of Houston administrative decisions: Interventional Cardiology for Tawa's care). Specifically, *4 [The expert's] report and curriculum vitae explain Tawa argues that Madias's report is deficient because (1) he that he has active staff privileges at Reston Hospital, is “not qualified to render an opinion regarding the applicable where he sits on the credentials committee, and that he is standard of care for Dr. Tawa,” (2) it “fails to specify the on the utilization review subcommittee for the neurology applicable standard of care,” (3) it “fails to adequately set section of Fairfax Hospital. As [plaintiff] argued in his forth the manner in which Tawa allegedly breached the response to the motion to dismiss, “this case concerns the standard of care,” and (4) it “fails to discuss the causal Defendant Hospital's decision to abandon [complainant], relationship between the breach and Mr. Gentry's” stroke. not whether the nursing staff followed protocol.”The report does not state that [the expert] is familiar with A. Qualification hospital administration or the standards to be applied to Tawa contends that Madias's report “seek[s] to hold Dr. Tawa implementing an attending physician's discharge order. strictly liable for the conduct of all, solely by virtue of the The fact that [the expert] is on staff at a hospital and serves fact that Dr. Tawa signed Mr. Gentry's admitting order.”This, on that hospital's credentials committee does not establish according to Tawa, “invents a dangerous new brand of that he possesses specialized knowledge of the protocols, vicarious liability, casting a net over the ‘attending physician’ policies, or procedures a hospital of ordinary prudence and any and all health care providers that subsequently come would have had in place in determining when a facility into contact with a patient.”He notes that not every licensed should disregard a discharge order. See Reed v. Granbury doctor is automatically qualified to testify on every medical Hosp. Corp., 117 S.W.3d 404, 409 (Tex.App.-Fort Worth question, Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996), 2003, no pet.). and that, to offer his opinion on the standard of care applicable [The expert's] report and curriculum vitae do not explain to attending physicians, Madias's expertise must be evident how [his] committee assignments and experience on staff from the four corners of his report and his CV. Palacious, 46 at Reston Hospital make him familiar with the standards S.W.3d at 878. applied by hospitals under these circumstances. Thus, the trial court abused its discretion in overruling [defendant's] Tawa relies on Christus Health Southeast Texas v. Broussard, objections to [the expert's] report. 267 S.W.3d 531, 536–37 (Tex.App.-Beaumont 2008, no pet.), a case in which a neurologist expert opined on the 267 S.W.3d at 536. standard of care applicable to a hospital's administrative decisions. Specifically, the expert—who had experience According to Tawa, “Dr. Madias' opinion regarding Dr. treating patients that, like the complainant, had “a history of Tawa's liability is not based upon the medical care Mr. fluctuating mental capacities”—opined about the hospital's Gentry received from Dr. Tawa.”Rather, he asserts, “Madias' decisions related to the complainant's discharge from long- conclusion regarding liability is based upon whether Dr. term care. Id. The complainant was intubated and being Tawa should have made the administrative decision to treated for “pneumonia and acute respiratory deficiency.” prevent implementation of another physician's order.”Thus, Id. at 534.While the complainant was waiting to be Tawa contends that, like the report at issue in Broussard, discharged pursuant to her doctor's orders, plaintiff alleged Madias's report does not show he is qualified to opinion about that the defendant hospital removed the complainant's finger “customs, policies and procedures.” pulse oximeter, then left complainant unrestrained and unsupervised. Id. She dislodged her breathing tube and The Gentrys respond that Tawa's argument “represents either suffered a hypoxic brain injury.Id. The court noted that the a mischaracterization or a misunderstanding of the opinion expert's report and CV did not “explain how his experience offered by Dr. Madias.”They argue that nowhere in Madias's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

report does he opine that Tawa as the attending physician is to testify.”Rittger v. Danos, 332 S.W.3d 550, 559 (Tex.App.- strictly liable for other's care; nor does he suggest that Tawa Houston [1st Dist.] 2009, no pet.). should have “overruled” the orders of another physician. Instead, Madias notes that as the attending physician, Tawa is responsible for managing the overall care of the patient, 2. Analysis which might include attempting to prevent performing Madias is board certified in Internal Medicine, licensed procedures that “pose a great risk to the patient given the to practice in Massachusetts, and is a professor at Tuffs totality of that patient's medical circumstances.”The Gentrys University School of Medicine. His report states that he also point out that Lal's progress notes “indicate that Dr. Tawa has reviewed Gentry's medical records and is “qualified to was a party to the decision to stop Mr. Gentry's antithrombotic evaluate and render an opinion ... based on the following”: treatment and administer procoagulant treatment,” such that (1) I have the training and experience in the management he may have “endorsed or approved these decisions.” Finally, of patients with atrial fibrillation; in the use of the Gentrys contend that it is apparent from Madias's report anticoagulation therapy in these patients; in the risk of and CV that he familiar with the standard of care regarding embolic stroke in the absence of anticoagulation therapy; attending physicians similarly situated with Tawa. in the indications and contraindications of a kidney biopsy; and in the diagnosis and management of kidney 1. Applicable Law disease. *5 Chapter 74 sets forth general criteria for qualifying an (2) I have been actively practicing medicine and caring for expert physician: patients like Mr. Gentry at the time he was diagnosed (a) In a suit involving a health care liability claim against with atrial fibrillation and thereafter including the time a physician for injury to or death of a patient, a person that the claim was filed. In addition, I have been actively may qualify as an expert witness on the issue of whether involved in the diagnosis and management of kidney the physician departed from accepted standards of medical disease during the same period. care only if the person is a physician who: (3) I have knowledge of the standard of care associated with (1) is practicing medicine at the time such testimony is the diagnosis and treatment of the illness and injury that given or was practicing medicine at the time the claim Mr. Gentry suffered, including his atrial fibrillation, the arose; need for anticoagulation, the risks of embolic stroke, and management of kidney diseases. (2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, (4) As a doctor of Internal Medicine who has or condition involved in the claim; and treated many patients with atrial fibrillation and uncontrolled hypertension, I have knowledge of the risks (3) is qualified on the basis of training or experience to involved when such patients' antithrombotic treatment offer an expert opinion regarding those accepted standards is discontinued. The consequences of discontinuation of medical care. of antithrombotic therapy and the causes of cardiac embolism are well known within the specialty of Internal TEX. CIV. PRAC. & REM.CODE § 74.401(a). Medicine. Because of this, I am qualified to offer opinions on the causation of Mr. Gentry's injuries. The relevant issue is not “the physician's area of practice but the stated familiarity with the issues involved in the *6 To determine if Madias is qualified to opine on the claim before the court.”Pediatric Med. Group, Inc. v. standard of care applicable to Tawa, we look to “the medical Robinson, 352 S.W.3d 879, 884 (Tex.App.-Dallas 2011, no condition involved in the claim and ... the expert's familiarity pet.).“Where a particular subject of inquiry is common to and experience with it.”Grandbury Minor Emergency. Clinic and equally developed in all fields of practice, and the v. Thiel, 296 S.W.3d 261, 267 (Tex.App.-Fort Worth 2009, prospective medical expert witness has practical knowledge no pet.). of what is usually and customarily done by a practitioner under circumstances similar to those with confronted the Tawa's argument that Madias is not qualified to render an practitioner charged with malpractice, the witness is qualified opinion rests primarily on his assertion that “Dr. Madias'

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

opinion regarding Dr. Tawa's liability is not based upon the Rowan NP–C, the expected management to be implemented medical care Mr. Gentry received from Dr. Tawa,” but instead by competent and responsible professionals?” whether “Tawa should have made the administrative decision to prevent implementation of another physician's order.”From *7 Unfortunately, Mr. Gentry's this, Tawa argues that Madias has not shown himself qualified health care providers decided soon to testify about such “administrative” decisions. after his admission, and despite the persistence of atrial fibrillation, to stop We disagree with Tawa's narrow characterization of Madias's the antithrombotic therapy in order opinion. Madias opines that Gentry's stroke was most to address by means of a kidney likely caused by “the discontinuation of Coumadin and biopsy the possible cause of the administration of FFP and vitamin K.” He opined that Tawa's patient's reduced renal function; this standard of care encompassed both his role as attending problem was unrelated to the patient's physician to be “responsible for the entire care delivered symptoms. to the patient by all healthcare providers,” and his “role of internist caring for the atrial fibrillation and the management Madias's report states that he has experience treating and of this condition.”Madias opined that a “patient with atrial managing patients similarly situated with Gentry, i.e., those fibrillation of uncertain time as to the initiation of the diagnosed with atrial fibrillation, and that he has “knowledge arrhythmia and on Coumadin therapy should not discontinue of the standard of care associated with the diagnosis and all antithrombotic therapy unless clots in the atria are absent treatment of the illness and injury that Mr. Gentry suffered, or active bleeding is present.”He also states, with regard to including his atrial fibrillation, the need for anticoagulation, Tawa, that “the standard of care requires an internist to know the risks of embolic strike, and management of kidney that administration of fresh frozen plasma and vitamin K to disease.”He further states that in his Internal Medicine reverse the anticoagulation caused by Coumadin therapy is practice, he has “treated many patients with atrial fibrillation very risky in a patient like Mr. Gentry since discontinuation of and uncontrolled hypertension,” and that he has “knowledge antithrombotic therapy may help to trigger the development of the risks involved when such patient's antithrombotic of more clots in the atria.” treatment is discontinued.”

According to the medical record summary contained in Madias's report further explains that the “consequences of Madias's report, after admitting Gentry to the hospital, Tawa discontinuation of antithrombotic therapy and the causes prescribed, among other things, Coumadin and Heparin to of cardiac embolism are well known within the specialty address his atrial fibrillation. “Lal wrote in a Progress Note of Internal Medicine,” and that “[a]ll of the concepts on November 18 that a plan was made for a kidney biopsy and opinions that I present are completely in the domain (Dr. Tawa, Dr. Keller, Dr. Morello, patient); FFP. Vit K iv.; and expected knowledge of an internist without additional hold Coumadin and heparin.”Tawa argues that this Progress training in cardiology or any other subspecialty.”Finally, he Note is not sufficient to suggest that he had any involvement notes that the “standard of care that apply to a subspecialist in in the medical decision to discontinue the medication that Cardiology or Nephrology managing Mr. Gentry must satisfy he had previously prescribed, and he argues that “the or even exceed those that apply to a specialist in Internal Amended Report does not state or even suggest that Dr. Tawa Medicine. That is, the standard of care applicable to internist participated in the decision to discontinue Coumadin therapy that do not have additional subspecialties such as Cardiology and administer vitamin K and fresh frozen plasma.”A fair or Nephrology.” reading of Lal's Progress Note is that Dr. Tawa was involved or, at a minimum, acquiesced in a treatment that called for “Where a particular subject of inquiry is common to an order discontinuing medication that Tawa had prescribed. and equally developed in all fields of practice, and the And, contrary to Tawa's argument that Madias does not prospective medical expert witness has practical knowledge suggest elsewhere in his report that Tawa was involved in this of what is usually and customarily done by a practitioner decision, Madias's report further attributes these decisions to under circumstances similar to those which confronted Tawa in a section entitled “Was the treatment that Mr. Gentry the practitioner charged with malpractice, the witness is received after his admission on November 14, 2008 by his qualified to testify.”Rittger, 332 S.W.3d at 558 (holding that health care providers including Dr. Tawa, Dr. Lai, and Angela neurologist/ professor of medicine was qualified to opine

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

on the standard of care in case against emergency room (Tex.App.-Dallas 2007, pet. denied) for the proposition that physician who failed to diagnose stroke in pregnant patient, Madias's failure to include specific information about the time explaining that the fact that the patient “was pregnant when frame in which Tawa was “required to intervene” renders his she experienced her stroke or that she presented herself in articulation of the standard of care fatally deficient. Finally, a emergency room setting does not require that [the expert] Tawa argues that the “report impermissibly infers that the be a an obstetrician or emergency room physician,” because standards of care applicable to Dr. Lal also apply to Dr. he “is shown to be sufficiently competent and qualified to Tawa.” testify as to the care of patients with stoke as a complication of pregnancy-related toxemia”). When, according to the The Gentrys respond that a physician can be liable for expert's report, the relevant standard of care is basic and not negligence in Texas based on a number of different acts or limited to any particular specialty, an expert is qualified if omissions, including choosing an inappropriate procedure, “actively participating in rendering medical care ‘relevant to abandoning a patient, not obtaining informed consent, and the claim,’ which can be demonstrated by a report showing not monitoring a patient's condition. Thus, they argue, “a the “injury involved was of the type [the expert] treated physician can be held liable for omissions-an affirmative in his practice.”Padilla v. Loweree, 354 S.W.3d 856, 864 action is not required in every case.”Additionally, they note (Tex.App.-El Paso 2011, pet. denied) (holding that orthopedic that even the authority Tawa cites acknowledges that a full surgeon was qualified to opine on standard of care against statement of the standard of care is not required, Kingwood gynecological surgeon because subject-matter of claimi.e., Pines Hosp., 362 S.W.3d at 748; all that is required is a positioning and padding of patients' extremities-is common statement sufficient to put the defendants on notice of the to types of surgeries expert performs). nature of the claims against them, which Madias's report does.

*8 We disagree with Tawa that Madias's report and opinions The Gentrys also contend that the Kingwood Pines case are analogous to the expert's report and opinions “about primarily relied upon by Tawa is distinguishable on its facts the administrative decisions of the Defendant Hospital” that because it involved a conclusory articulation of a nonmedical the court in Brossard held the expert was not qualified standard of care not present in this case. The Gentrys argue by experience or knowledge to opine about. 267 S.W.3d that Kettle—the case Tawa cites for the proposition that at 536. Rather, Madias's report and CV demonstrate that Madias's report lacks requisite specificity about the timeframe he has experience treating patients similarly situated with for intervention—is likewise distinguishable. In that case, the Gentry, and that the standards about which he opines are court found the word “promptly” to be too ambiguous to generally and well-known within his field of expertise. Tawa articulate the standard of care that turned on when a procedure has not established that the trial court abused its discretion in should have been performed to prevent a patient's death. finding Madias qualified to render an opinion regarding the According to the Gentrys, this case does not involve the applicable standard of care for Tawa. same ambiguity concerns, given that the only possible time to intervene in this case would have been before cessation of antithrombotic therapy and the subsequent administration B. Adequacy of Report of vitamin K and fresh frozen plasma. Finally, the Gentrys assert that Tawa's contention that Madias's report imputes 1. Standard of Care Lal's standard of care to Tawa is simply not supported by the Tawa next argues that Madias's report “fails to specify actual contents of the Amended Report. an adequate standard of care for Dr. Tawa.”Specifically, Tawa asserts that the “standard of care articulated in the *9 Madias's report contains the following articulation of the report is ambiguous and conclusory because the report standard of care as it relates to Tawa: provides no specific information about what Dr. Tawa should have done differently to meet the expected standard.”Tawa The accepted standard of medical care applicable to Dr. cites Kingwood Pines Hospital v. Gomez, 362 S.W.3d Tawa relates to this dual role of attending physician and 740, 743 (Tex.App.-Houston [14th Dist.] 2011, no pet.) that of internist caring for the patient. As the attending for the proposition that Madias's report fails to include physician in the admission to the hospital of Mr. Gentry, specific enough information about what an ordinarily prudent Dr. Tawa is responsible for the entire care delivered to healthcare provider would have done, and Kettle v. Baylor the patient by all healthcare providers, including Dr. Lal Medical Center at Garland, 232 S.W.3d 832, 838–39 and Angela Rowan. Thus, Dr. Tawa must oversee the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

care delivered by the other providers and ensure that prevent brain damage” was sufficient articulation of standard it is within the standard of care. Failure to fulfill this of review, in case alleging that physician was negligent in task leads to substandard care. Dr. Tawa also treated failing to immediately prescribe anticonvulsants). Mr. Gentry in the role of internist caring for the atrial fibrillation and the management of this condition. A *10 The cases relied upon by Tawa are inapposite. In patient with atrial fibrillation of uncertain time as to the Kingwood Pines, a minor who was being evaluated for intuition of the arrhythmia and on Coumadin therapy a psychiatric condition stemming from sexual abuse sued should not discontinue all antithrombotic therapy unless her doctor and hospital after she was sexually molested by clots in the atria are absent or active bleeding is present. another patient while in the hospital. 362 S.W.3d at 743– The standard of care requires an internist to know 44. The court noted that her expert's report contained only that administration of fresh frozen plasma and vitamin conclusory statements “regarding the provision of a secure K to reverse the anticoagulation caused by Coumadin environment, the supervision of patients, and the prevention therapy is very risky in a patient like Mr. Gentry since of harm to patients,” without “indicat[ing] what an ordinarily discontinuation of antithrombotic therapy may help to prudent health care provider would do under the same or trigger the development of more clots in the atria. similar circumstances.”Id. at 749.The court thus held that the articulation of the standard of care was insufficient as the It is important to recognize that the accepted standards of expert merely stated “that appellants did not provide a safe care for the diagnosis and management of the illness of and secure environment for [the plaintiff], but do not specify Mr. Gentry are entirely dependent on his condition as a how this should have been accomplished.”Id. Given that patient and are largely independent of the subspecialty (e.g. Medias's report does indicate what course of action was called Cardiology or Nephrology) of the providers. Mr. Gentry for, it does not lack specificity as the report in Kingwood had a medical condition typically managed by internists Pines did. (specialty in Internal Medicine), and both Dr. Lal and Dr. Tawa were board certified in Internal Medicine. Kettle, the other case cited by Tawa, is likewise distinguishable. In that case, the court affirmed the trial The standard of care is defined by what an ordinarily prudent court's dismissal of a plaintiff's claim for failure to serve an health care provider or physician would have done under the adequate expert report as to plaintiffs claims against certain same or similar circumstances.Palacios, 46 S.W.3d at 880; physicians. 232 S.W.3d at 638–39. Among other things, the Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 222 court concluded that the expert's articulation of the standard (Tex.App.-Houston [1st Dist.] 2003, pet. denied). Identifying of care was vague in that it did not specify what action should the standard of care is critical: whether a defendant breached have been taken when: his or her duty to a patient cannot be determined absent specific information about what the defendant should have Cohen's opinion that all the physician- done differently. Palacios, 46 S.W.3d at 880. While a “fair defendants collectively shared the summary” is something less than a full statement of the same duty to diagnose and treat applicable standard of care and how it was breached, even a Kettle's condition “promptly” or fair summary must set out what care was expected, but not “earlier” is also too vague and general given. Id. to satisfy Palacios.It could be stated that every physician has a general Madias's report adequately set forth the standard of care. It duty to diagnose or treat medical states that, in managing atrial fibrillation such as Gentry's, conditions timely but that truism does antithrombotic therapy should not be discontinued unless not inform the physician-defendants certain conditions are present. This is sufficient to put what the standard specifically required Tawa on notice of the “specific conduct” that the Gentrys them to do. It is conclusory. have called into question, and what he should have done differently. Palacios, 46 S.W.3d at 879;e.g., Menefee v. Id. This analysis is simply not relevant to the Gentrys' claims, Ohman, 323 S.W.3d 509, 519 (Tex.App.-Fort Worth, 2010, as it is clear when each action was taken that Madias's views no pet.)(expert's statement that defendant-physician “owed as a breach of the standard of care, i.e., discontinuation of the patient in an acute care setting the duty to immediate antithrombotic therapy and administration of fresh frozen and sufficient medical response to her condition in order to plasma and vitamin K.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

management of Johnson utilizing a We find the facts presented here to be more analogous combination of warfarin and aspirin. to Springer v. Johnson, 280 S.W.3d 322, 334 (Tex.App.- Amarillo 2008, no pet.). In Springer, the plaintiff was *11 Id. at 331–32.The Springer court rejected the admitted to the hospital for cardiac surgery and, prior defendants' reliance on Kettle for the proposition that the to that surgery, her attending physicians discontinued her standard of care was not sufficiently articulated. Id. at anticoagulant therapy. 280 S.W .3d at 325. Three days 333.The court pointed out that the report at issue “states later, she was discharged without receiving a prescription or the standard of care, the clinical indicators that should have instructions to resume her anticoagulant therapy. Id. She then prompted treatment (patient with newly implanted aortic suffered a stroke. Id. Similar to Madias's report, the expert mechanical prosthesis and history of atrial fibrillation), and in Springer opined that she should have been prescribed the treatment that should have been administered (warfarin anticoagulation medication, and further that each doctor had therapy with a prescribed low dose aspirin) to satisfy the a duty to coordinate her care to ensure that she received the duty of care.”Id. Here, Madias likewise states the clinical proper medication, given the risk indicators: indicators (atrial fibrillation of uncertain time) and the treatment that should have been administered (continued [The] expert report indicates [plaintiff] antithrombotic therapy). suffered from paroxysmal atrial fibrillation, an abnormal heart rhythm Finally, we agree with the Gentrys that Tawa's assertion that alternating between a normal heart Madias's report does not differentiate between the standards rhythm, and she underwent a of care applicable to Tawa and Lal is not supported by combined coronary bypass graft and the contents of the actual report. While Madias states that aortic valve replacement while at the standards applicable to both Tawa and Lal are known Lubbock Heart Hospital. He opines and applicable to internists generally without regard to their that these two facts are clinical additional specialties, his report clearly articulates a separate indicators establishing a compelling standard for both Tawa and Lal individually, and then states and absolute need for anticoagulation that they had an obligation to coordinate their treatment of therapy using warfarin because Gentry. (1) an aortic valve replacement significantly increased her risk of The trial court did not abuse its discretion in determining thromboembolism, i.e., clot formation that Madias's report adequately articulated a standard of care in a blood vessel that breaks loose related to Tawa. and is carried by the blood stream until it eventually plugs another blood vessel, and (2) her paroxysmal 2. Causation atrial fibrillation added to that risk. Tawa next argues that Madias's report “fails entirely to [The expert] further opines that discuss a causal relationship between Dr. Tawa's conduct [plaintiff] should have been prescribed and Mr. Gentry's embolic CVA.”Specifically, he argues that warfarin and aspirin. He states that “the report does not state or even suggest that Mr. Gentry Springer, [plaintiff]'s cardiac surgeon, would not have suffered a stroke if he had remained on and Rizzo and Solis, her attending antithrombotic therapy.”Tawa cites several cases for the cardiologists, were under a duty to proposition that a report that only sets forth causation in a coordinate an appropriate plan for conclusory fashion is not sufficient. Tenet Hosp. LLC v. Love, their patient's care which would have 347 S.W.3d 743, 755 (Tex.App.-El Paso 2011, no pet.)(expert included coordinating care between opinion that if defendant hospital “had a pulmonologist themselves as well as employees and or critical care specialist on call and available to see and agents of Lubbock Heart Hospital. He treat this patient or had transferred this patient before her further opines they were also under condition worsened, [patient] would more likely than not a duty to supervise anticoagulation be alive today” was impermissibly conclusory); Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245, 249 (Tex.App.-San Antonio 2004, no pet.)(expert's mere assertion

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

that patient would have survived was conclusory when report proximately caused of Gentry's stroke, and (4) why a kidney did not explain causal relationship between patient's death and biopsy was not indicated, given Gentry's symptoms. Contrary alleged omissions by hospital, including whether treatment to Tawa's assertions, Madias's report clearly states his opinion would have or could have been effective). that the discontinuation of Coumadin and infusion of vitamin K and fresh frozen plasma was the most likely cause of The Gentrys contend that Tawa's argument does not represent Gentry's stroke. The cases Tawa cites are inapposite because a fair reading of Madias's report. They assert that “when one unlike the conclusory reports in those cases, Madias's report views the report in total, it is clear that causation of Mr. does “explain the basis of the expert's statements regarding Gentry's injuries is sufficiently addressed and connects the causation and link his conclusions to the facts.”Love, 347 actions and omissions of Dr. Tawa to those injuries.” S.W.3d at 754.

Madias's report states that the care Gentry received at North The trial court did not abuse its discretion in determining that Cypress Medical Center by Tawa, Rowan, and Lal was Madias's report adequately articulated a causal link between “below the standard of ordinary care, and that it was a Tawa's care and Gentry's stroke. Because we have concluded proximate cause of his cerebrovascular accident (embolic that Madias possessed the required qualifications to prepare stroke) that resulted in hemiplegia with permanent and severe an expert report opining on Tawa's care, and because we have neurologic disability.”His report then goes on to explain the concluded Madias's report meets the statutory requirements, underlying medical basis for his opinion: we overrule appellants' first issue complaining that the trial court abused its discretion in failing to grant Tawa's motion *12 The cause of the CVA was to dismiss. acute cerebral ischemia with brain infarction within the right side of the brain that resulted from embolism of blood clots that originated in the left ROWAN cardiac chambers (i.e., left atrium). In appellants' second issue, they argue that the trial court The consulting neurologist, the CT abused its discretion in failing to find Madias's report head, the Brain MRI, all support that deficient as it relates to Rowan (and to the vicarious liability cardiac embolism was the cause of the of Houston Interventional Cardiology for Rowan's care). patient's CVA. The relative normalcy Specifically, Rowan argues that Madias's report is deficient of the Duplex carotid evaluation is because (1) he is “not qualified to render an opinion regarding also consistent with embolism as the the standard of care applicable to nurse practitioners,” (2) it basis for the CVA. Because patients “fails to specify a standard of care applicable to Ms. Rowan,” with atrial fibrillation are at a much and (3) “fails entirely to dismiss the causal relationship higher risk for embolic stroke, it between Ms. Rowan's alleged breach and Mr. Gentry's is important for them to receive embolic CVA.” antithrombotic therapy unless there is active bleeding or the absence of clots has been confirmed. In this case, A. Qualification the discontinuation of Coumadin and Rowan argues that Madias is not qualified to testify on the administration of FFP and vitamin standard of care for a nurse practitioner. She relies on HB K was the most likely cause of the Properties L.P. v. Cox, No, 02–09–00111–CR, 2009 WL formation of clots in Mr. Gentry's atria 3337190 (Tex.App.-Fort Worth Oct. 5, 2009, pet. denied) and his subsequent CVA. (mem.op.), which held that a doctor board certified in internal medicine was not qualified to render an opinion on the Madias's report contains additional information about (1) standard of care applicable to nurses. In that case, although the source of Gentry's blood clots leading to his CVA, the expert's CV reflected experience and expertise in internal (2) the substantial risk and usual course of treatment for medicine and as a medical administrator, nothing in his report patients with atrial fibrillation associated with substantial or CV demonstrated familiarity with the acceptable standard hypertension and left atrial enlargement, (3) why the actions of care for nurses. HB Props. L.P., 2009 WL 3337190, at of each defendant healthcare provider were negligent and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

*4 (holding trial court abused its discretion in failing to claim, or that he has ever worked grant motion to dismiss because “[t]hough [expert] is not with or supervised the specific types automatically disqualified from giving an expert opinion of health care providers involved regarding the accepted standard of care for HN's nurses in the claim, the physician is not simply because he is an internal medicine physician instead qualified on the issue of whether the of a nurse, we may not through inferences or otherwise fill health care provider departed from in the gaps in his report where he fails to detail why or the accepted standards of care for how he is qualified to opine about the applicable standard health care providers. However, if the of care for HN's nurses.”). Rowan contends that Madias's physician states he is familiar with report similarly fails to demonstrate a familiarity with the the standard of care for both nurses standard of care applicable to a nurse practitioner working in and physicians, and for the prevention cardiology. and treatment of the illness, injury, or condition involved in the claim, *13 The Texas Civil Practice and Remedies Code sets forth the physician is qualified on the issue the criteria for an expert witness against a health care provider of whether the health care provider such as Rowan: departed from the accepted standards of care for health care providers. (b) In a suit involving a health care liability claim against Further, if a physician states he is a health care provider, a person may qualify as an expert familiar with the standard of care witness on the issue of whether the health care provider and responsibilities and requirements departed from accepted standards of care only if the person: for physician's assistants, and he has worked with, interacted with, and (1) is practicing health care in a field of practice that supervised physician's assistants, the involves the same type of care or treatment as that physician is qualified on the issue delivered by the defendant health care provider, if the of whether the health care provider defendant health care provider is an individual, at the departed from the accepted standards time the testimony is given or was practicing that type of care for health care providers. of health care at the time the claim arose; Baylor Med. Center at Waxahachie v. Wallace, 278 (2) has knowledge of accepted standards of care for S.W.3d 552, 558 (Tex.App.Dallas 2009, no pet.)(citations health care providers for the diagnosis, care, or treatment omitted).Compare Simonson v. Keppard, 225 S.W.3d 868, of the illness, injury, or condition involved in the claim; 873 (Tex.App.-Dallas 2007, no pet.)(physician not qualified and to opine on standard of care for nurse practitioner because (3) is qualified on the basis of training or experience his report does not “state that he either has knowledge of to offer an expert opinion regarding those accepted the standard of care applicable to nurse practitioners or that standards of health care. he has ever worked with or supervised nurse practitioners) and Jones v. Ark–La–Tex Visiting Nurses, Inc., 128 S.W.3d TEX. CIV. PRAC. & REM.CODE § 74.402(b). 393, 396 (Tex.App.Texarkana 2004, no pet.)(physician not qualified to opine on standard of care for nurse because his Applying this standard, the courts of appeals have “report fails to state [his] qualifications to give the standard consistently required a physician-expert proffering an opinion of care for nurses monitoring a patient in a home healthcare on the applicable standard of care of a nonphysician to setting”), with San Jacinto Methodist Hosp. v. Bennett, 256 affirmatively demonstrate experience and familiarity with the S.W .3d 806, 813 (Tex.App.-Houston [14th Dist.] 2008, no standard of care for the nonphysician's field. pet.)(physician qualified to opine on standard of care for nurse because his “report stated that he is familiar with the standard When a physician fails to state in of care for both nurses and physicians for the prevention and his expert report or affidavit that he treatment of decubitus ulcers”). has knowledge of the standard of care applicable to the specific types of *14 Madias's report does not profess any knowledge about health care providers involved in the the standard of care applicable to nurse practitioners. He

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Tawa v. Gentry, Not Reported in S.W.3d (2013) 2013 WL 1694869

does not claim to have experience training or supervising Section 74.351 provides that, if a timely expert report is not nurse practitioners or provide any other basis for the trial filed, upon motion, the court “shall... enter an order that: ... court to conclude that he was familiar with such standard. awards to the affected physician or health care provider In contending that Madias is qualified to opine about the reasonable attorney's fees and costs of court incurred by standard of care applicable to Rowan, the Gentrys only point the physician or health care provider.” TEX. CIV. PRAC. to evidence that Madias is “familiar with the management & REM.CODE § 74.351. This “automatic attorney's fees of patients with medical conditions similar to Mr. Gentry,” sanction comes into play when a timely but deficient expert and ask us to conclude that he “therefore would be familiar report has been filed.”Hightower v. Baylor Univ. Med. with the standard of care as it relates to nurses managing Ctr., 348 S.W.3d 512, 522 (Tex.App.-Dallas 2011, pet. such patients.”Neither the text of section 74.402 nor the cases denied). Thus, appellants Rowan and Houston Interventional interpreting it allow us to make such an assumption. Cardiology are entitled to an award of reasonable attorneys' fees and costs incurred related to claims premised on care Because nothing in Madias's report demonstrates that he provided by Rowan. is familiar with the standard of care applicable to nurse practitioners, we hold that the trial court abused its discretion by denying Rowan's motion to dismiss (and Houston Intervention Cardiology's motion to dismiss as it relates to CONCLUSION vicarious liability for Rowan's care of Gentry). We thus sustain appellants' second issue. We affirm the trial court's order denying appellants Tawa and Houston Interventional Cardiology's motion to dismiss claims related to Tawa's care of Gentry. We dismiss the Gentrys' B. Attorneys' Fees claims against appellants Rowan and Houston Interventional Rowan and Houston Intervention Cardiology request that Cardiology (only as to vicarious liability claims related to we reverse the trial court's order denying their motion to Rowan's care of Gentry). We remand to the trial court for an dismiss the Gentrys' claims related to Rowan's care and award of reasonable attorneys' fees and costs to Rowan and remand to the trial court with instructions to award to them Houston Interventional Cardiology related to the dismissed reasonable attorneys' fees and costs under section 74.351 of claims and for further proceedings. the Texas Civil Practice and Remedies Code. The Gentrys argue that an award of attorneys' fees under section 74.351 is not appropriate, even if Madias's report is deficient, because All Citations it is not so deficient that it should be considered “no report Not Reported in S.W.3d, 2013 WL 1694869 at all.”

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)

[2] Health 185 S.W.3d 65 Affidavits of merit or meritorious defense; Court of Appeals of Texas, expert affidavits San Antonio. For an expert's report to constitute a “good- Marie TOVAR, Individually and as Representative faith effort” under the Medical Liability and of The Estate of Guadalupe M. Rodriguez, Insurance Improvement Act, the report must provide enough information to (1) inform the Guadalupe Palacios, and Gilda Sanchez, Appellants, defendant of the specific conduct the plaintiff has v. called into question, and (2) provide a basis for METHODIST HEALTHCARE SYSTEM the trial court to conclude that the claims have OF SAN ANTONIO, LTD., L.L.P., d/b/a merit. Vernon's Ann.Texas Civ.St. art. 4590i, § Southwest Texas Methodist Hospital, Appellee. 13.01(l),(r)(6)(Repealed).

No. 04–05–00054–CV. | Nov. 16, 2005. 6 Cases that cite this headnote

Synopsis Background: Patient's estate brought medical malpractice [3] Health action against hospital, alleging that the negligence of Affidavits of merit or meritorious defense; hospital's nurses resulted in a delay in diagnosis that caused expert affidavits patient's condition to deteriorate and that the delay in In determining the adequacy of an expert diagnosis delayed the discovery of a cerebral hemorrhage. report under the Medical Liability and Insurance The 285th Judicial District Court, Bexar County, Lori Improvement Act, trial court should look no Massey, J., dismissed action, and estate appealed. further than the report itself, because all the information relevant to the inquiry is contained within the document's four corners. Vernon's [Holding:] The Court of Appeals, Sandee Bryan Marion, J., Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r) held that doctor's expert report satisfied Medical Liability and (6)(Repealed). Insurance Improvement Act's requirements on standard of Cases that cite this headnote care, breach of that standard, and causation.

[4] Health Reversed and remanded. Affidavits of merit or meritorious defense; expert affidavits Although expert report under Medical Liability West Headnotes (12) and Insurance Improvement Act need not marshal all the plaintiff's proof, it must include the expert's opinion on each of the three elements [1] Health that the Act identifies: standard of care, breach, Affidavits of merit or meritorious defense; and causal relationship. Vernon's Ann.Texas expert affidavits Civ.St. art. 4590i, § 13.01(l), (r)(6)(Repealed). Medical malpractice plaintiffs must provide each defendant physician and health care 6 Cases that cite this headnote provider an expert report with the expert's curriculum vitae, or voluntarily nonsuit the [5] Health action. Vernon's Ann.Texas Civ.St. art. 4590i, § Affidavits of merit or meritorious defense; 13.01(d)(Repealed). expert affidavits

Cases that cite this headnote Under Medical Liability and Insurance Improvement Act, expert report cannot merely

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)

state the expert's conclusions about standard of of standard of care with his conclusion that care, breach, and causal relationship; instead, the patient's neurological condition would not have expert report must explain the basis of expert's deteriorated, resulting in need for surgery. statements to link his conclusions to the facts. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(r) Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(r) (6)(Repealed). (6)(Repealed). 6 Cases that cite this headnote 2 Cases that cite this headnote [9] Health [6] Health Affidavits of merit or meritorious defense; Standard of Care expert affidavits Health It is not enough that expert report under Hospitals in General Medical Liability and Insurance Improvement The standard of care for a hospital or other Act provides insight about the plaintiff's claims. medical provider is what an ordinarily prudent Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(r) hospital or other medical provider would do (6)(Repealed). under the same or similar circumstances. Cases that cite this headnote Cases that cite this headnote [10] Health [7] Health Affidavits of merit or meritorious defense; Standard of Care expert affidavits Health Medical Liability and Insurance Improvement Breach of Duty Act requires only a fair summary of the expert's opinions, and although a fair summary is Identifying the standard of care is critical in something less than all the evidence necessary medical malpractice action because whether to establish causation at trial, a fair summary a defendant breached his or her duty to a must contain sufficiently specific information to patient cannot be determined absent specific demonstrate causation beyond mere conjecture information about what the defendant should in order to meet the Act's requirements. have done differently. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(r) Cases that cite this headnote (6)(Repealed).

3 Cases that cite this headnote [8] Health Affidavits of merit or meritorious defense; [11] Health expert affidavits Affidavits of merit or meritorious defense; Doctor's expert report satisfied Medical Liability expert affidavits and Insurance Improvement Act's requirements Under Medical Liability and Insurance on standard of care, breach of that standard, and Improvement Act, plaintiff need not present causation; doctor's expert report sufficiently set evidence in the expert report as if it were actually forth standard of care because doctor specifically litigating the merits. Vernon's Ann.Texas Civ.St. stated what should have been done for patient art. 4590i, § 13.01(r)(6)(Repealed). with acute neurological process, doctor's expert report also sufficiently set forth how standard Cases that cite this headnote of care was breached because he specifically stated what nurses should have done, but did not do, and doctor's expert report linked his [12] Health conclusion regarding nurses' alleged breach

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)

Affidavits of merit or meritorious defense; Although she was alert and oriented at the time, she expert affidavits complained of a headache and right-arm numbness. Ms. Under Medical Liability and Insurance Rodriguez was evaluated and an order admitting her to Improvement Act, expert report can be informal the Neurological Care Unit was written at approximately in that the information in the report does not have 5:10 p.m. However, she was not admitted to the unit until to meet the same requirements as the evidence approximately 8:00 p.m., allegedly because of a nursing offered in a summary-judgment proceeding or at shortage. Over the next several hours, Ms. Rodriguez was trial. Vernon's Ann.Texas Civ.St. art. 4590i, § seen by doctors who evaluated her condition, and nurses who 13.01(r)(6)(Repealed). documented her condition. At 9:30 p.m., a call placed to Dr. Chandrahasan was returned by Dr. Osonma, who ordered Cases that cite this headnote medication to treat Ms. Rodriguez's blood pressure and nausea. At 12:30 a.m. the next morning, the nursing personnel called Dr. Garrison and reported neurological changes and elevated blood pressure. Dr. Garrison ordered an emergency Attorneys and Law Firms CT scan, which revealed a massive occipital parietal temporal hemorrhage. At 3:45 a.m., Ms. Rodriguez underwent surgery, *66 Jeff Small, Law Office of Jeff Small, M. Stephen following which she was kept on life-support until she was Cichowski, Cichowski & Gonzalez, P.C., San Antonio, for transferred to a hospice where she died on June 13, 2001. appellants. After filing suit against the hospital and doctors, appellants Lucretia R. Marmor, Ruth G. Malinas, Ball & Weed, P.C., filed the expert report of Dr. Kenneth C. Fischer. The hospital San Antonio, for appellee. moved to dismiss appellants' claims on the grounds that Dr. Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Fischer's report did not adequately address the elements of Justice, SANDEE BRYAN MARION, Justice. standard of care, breach, and causation. After a hearing, the trial court granted the motion, and severed appellants' claims against the hospital from their claims against the doctors. This appeal ensued. OPINION

Opinion by SANDEE BRYAN MARION, Justice. ADEQUACY OF EXPERT REPORT This is an appeal from the trial court's dismissal of appellants' medical malpractice case against appellee on the grounds that [1] [2] Medical-malpractice plaintiffs must provide each appellants' expert report did not satisfy the requirements of defendant physician and health-care provider an expert report the Medical Liability and Insurance Improvement Act (“the with the expert's curriculum vitae, or voluntarily nonsuit the Act”). In the underlying lawsuit, appellants sued three doctors action. See TEX.REV.CIV. STAT. ART.. 4590i, § 13.01(d) and Southwest *67 Methodist Hospital, alleging, in part, (Vernon Supp.2003); 1 American Transitional Care Ctrs. that the hospital nurses' negligence resulted in a delay in of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). diagnosis that caused Guadalupe M. Rodriguez's condition The expert report must provide “a fair summary of the to deteriorate. Appellants contend the delay in diagnosis expert's opinions as of the date of the report regarding delayed the discovery of a cerebral hemorrhage. According to applicable standards of care, the manner in which the care appellants, if the hemorrhage had been discovered and treated rendered by the physician or health care provider failed sooner, Ms. Rodriguez's neurological deterioration and death to meet the standards, and the causal relationship between could have been averted. We reverse and remand. that failure and the injury, harm, or damages claimed.” TEX.REV.CIV. STAT. ART.. 4590i, § 13.01(r)(6). If a defendant moves to dismiss the plaintiff's case based upon BACKGROUND the report's inadequacy, the trial court must grant the motion “only if it appears to the court, after hearing, that the report On June 7, 2001 at approximately 1:26 p.m., seventy-five- does not represent a good faith effort to comply with the year-old Guadalupe M. Rodriguez arrived at the hospital. definition of an expert report in Subsection (r)(6) of this

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)

section.” Id. § 13.01(l ). To constitute a “good-faith effort,” obvious deterioration at that time, they the report must provide enough information to (1) inform the meekly accepted inadequate responses defendant of the specific conduct the plaintiff *68 has called of Dr. Garrison and Dr. Osonma with into question, and (2) provide a basis for the trial court to no further calls to physicians until conclude that the claims have merit. Palacios, 46 S.W.3d at 12:30 a.m. when the patient was in 879. extremis. The appropriate standard of care for nursing personnel treating a 1 Article 4590i was repealed by Act of June 2, 2003, patient with acute neurological process 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws is to promptly and expeditiously 847, 884, and has been re-codified at TEX. CIV. PRAC. transfer the patient to the appropriate & REM.CODE ANN. § 74.351 (Vernon Supp.2004) setting and carefully inform the (effective Sept. 1, 2003). Because the underlying lawsuit treating physicians of changes in was filed on August 11, 2003, all references in this the patient's clinical status so that opinion will be to former article 4590i. appropriate care can be rendered. [3] [4] [5] A trial court should look no further than The nursing personnel ... failed to the report itself, because all the information relevant to the perform these critical functions in inquiry is contained within the document's four corners. Id. at their management of Ms. Rodriguez, 878. Although the report need not marshal all the plaintiff's thereby breaching the standard of care. proof, it must include the expert's opinion on each of the three elements that the Act identifies: standard of care, breach, We conclude Dr. Fischer's report sufficiently sets forth and causal relationship. Id. A report cannot merely state the the standard of care because he specifically states what expert's conclusions about these elements. Id. at 879. Instead, should have been done for a patient “with acute neurological “the expert must explain the basis of his statements to link his process.” We also conclude Dr. Fischer's report sufficiently conclusions to the facts.” Bowie Mem'l Hosp. v. Wright, 79 sets forth how the standard of care was breached because he S.W.3d 48, 52 (Tex.2002). specifically states what the nurses should have, but did not, do.

STANDARD OF CARE AND BREACH OF THE STANDARD CAUSATION

[6] [7] [8] The standard of care for a hospital or other [9] To constitute a good-faith effort to establish the causal- medical provider is what an ordinarily prudent hospital or relationship element, the expert report must fulfill Palacios's other medical provider would do under the same or similar two-part test. See Wright, 79 S.W.3d at 52; Palacios, 46 circumstances. See Palacios, 46 S.W.3d at 880; see also S.W.3d at 879. It is not enough that the expert report Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 222 “provided insight” about the plaintiff's claims. Wright, 79 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). Identifying S.W.3d at 52. Nor may liability in a medical malpractice the standard of care is critical because whether a defendant suit be made to turn upon speculation or conjecture. See breached his or her duty to a patient cannot be determined Hutchinson v. Montemayor, 144 S.W.3d 614, 618 (Tex.App.- absent specific information about what the defendant should San Antonio 2004, no pet.). Therefore, although a fair have done differently. Palacios, 46 S.W.3d at 880. summary is something less than all the evidence necessary to establish causation at trial, a fair summary must contain Dr. Fischer's report stated the following with regard to the sufficiently specific information to demonstrate causation standard of care and the nurses' alleged breach of the standard beyond mere conjecture in order to *69 meet the Act's of care: requirements and satisfy the Palacios test. See Wright, 79 S.W.3d at 52. ... [T]he nursing personnel provided poor documentation of the clinical On causation, Dr. Fischer's report stated the following: status of Ms. Rodriguez between 5 p.m. and 9 p.m. Despite the patient's

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)

In Lopez, the plaintiffs relied on the following single sentence The results of the standard of care departures exercised in the report to establish causation: “Additionally, it is the by Dr. Chandrahasan, Garrison, Osonma, and the nursing aspiration of the bridge section which caused and precipitated personnel in the ER and the receiving floor caused the medical circumstances leading to the patient's demise.” a substantial delay in the appropriate diagnosis and 131 S.W.3d at 60. A panel of this court concluded that this initiation of treatment for the cerebral hemorrhage statement was conclusory, and did not constitute a good sustained by Ms. Rodriguez. This type of lesion harbored by faith effort to comply with the statute's causation requirement Ms. Rodriguez requires prompt cessation of the Coumadin, because the statement did not provide information linking an immediate brain CT scan, immediate institution of fresh Montemayor's actions to Lopez's death. Id. frozen plasma to reverse the Coumadin, and obtaining neurological and neurosurgical consultation on a stat In Costello, the expert report contained the following single basis. The failure of Dr. Chandrahasan to promptly sentence on causation: “Dr. Schilling's report states, ‘If this have the patient transferred to the ICU from the ER patient would have been appropriately triaged and evaluated, as well as his failure to convey the particulars of Ms. then in all reasonable medical probability she would have Rodriguez' [sic] clinical situation to his on-call physician, survived.’ *70 ” Costello, 141 S.W.3d at 249. A panel Dr. Osonma, delayed the addressing of the patient's clinical of this court held that the expert's assertion that the patient deterioration. Similarly, the failure of Dr. Osonma and would have survived was conclusory and we listed a variety Dr. Garrison to respond appropriately to the changes of deficiencies in the report. Id. For example, the report conveyed to them by the nursing personnel also delayed did not explain the causal connection between failure to realization of the appropriate diagnosis. Again, the failure appropriately triage and evaluate and the patient's death; of the nursing personnel to insist upon prompt evaluation offered no explanation of what medical information a more of the patient's changing clinical status further delayed timely triage and evaluation would have revealed; did not diagnosis. Had the appropriate diagnosis been made state what would have been done had Christus not failed to expeditiously in the afternoon hours, when it should have act; did not state how Christus' failure to act was a substantial been, instead of 2 a.m. in the morning, when it was finally factor in bringing about the patient's death and without which discovered, the hemorrhage would have been detected at her death would not have occurred; and did not explain the a much earlier stage with the possibility of only medical medical basis or reasoning for the conclusion that Lozano “in treatment required as opposed to the desperate and all reasonable medical probability” would have survived. Id. unsuccessful surgery which transpired at 3:45 a.m. Within reasonable medical probability, the dramatic neurological [10] Although our opinion in Costello listed these various deterioration and death of Ms. Rodriguez would have been deficiencies, this list should not be construed as mandatory. averted. The failure of the doctors and nursing personnel to As we stated in Costello, the Act requires only “a perform within appropriate medical and nursing standards ‘fair summary’ ” of the expert's opinions. Id. Here, the unfortunately caused this untoward result. (Emphasis expert report meets that requirement. Dr. Fischer links added.) his conclusion regarding the nurses' alleged breach of the standard of care with his conclusion that Ms. Rodriguez's The hospital asserts Dr. Fischer's report contains no factual neurological condition would not have deteriorated, resulting statements or explanation supporting his conclusion that in the need for surgery. Dr. Fischer states that if the nurses had the nurses' conduct caused Ms. Rodriguez's death; does “carefully inform[ed] the treating physicians of changes in not identify what the nurses failed to communicate to the the patient's clinical status ... [the] type of lesion harbored by physicians between 9:30 p.m. and 12:30 a.m., and does Ms. Rodriguez .... [should have resulted in] prompt cessation not identify what information the doctors should have acted of the Coumadin, an immediate brain CT scan, immediate upon. The hospital argues Dr. Fischer's report is no more institution of fresh frozen plasma to reverse the Coumadin, adequate than the reports considered by this court in Lopez v. and obtaining neurological and neurosurgical consultation Montemayor, 131 S.W.3d 54 (Tex.App.-San Antonio 2003, on a stat basis ... [then] ... [w]ithin reasonable medical pet. denied) and Costello v. Christus Santa Rosa Health Care probability, the dramatic neurological deterioration and death Corp., 141 S.W.3d 245 (Tex.App.-San Antonio 2004, no of Ms. Rodriguez would have been averted.” We conclude Dr. pet.). We disagree. Fischer's report satisfies the Act's requirement on causation.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Tovar v. Methodist Healthcare System of San Antonio, Ltd., L.L.P., 185 S.W.3d 65 (2005)

and represents a good-faith effort to provide a fair summary CONCLUSION of the statutory elements of standard of care, breach, and [11] [12] “[A] plaintiff need not present evidence in the causation. For these reasons, we reverse the trial court's order report as if it were actually litigating the merits. The report of dismissal and remand the cause for further proceedings. 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.” Palacios, All Citations 46 S.W.3d at 879. We conclude that Dr. Fischer's report put the defendant on notice of the conduct complained of, 185 S.W.3d 65

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

A trial court's determination about the adequacy of an expert report under the Medical Liability 46 S.W.3d 873 and Insurance Improvement Act is reviewed Supreme Court of Texas. under an abuse-of-discretion standard. Vernon's AMERICAN TRANSITIONAL CARE Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6). CENTERS OF TEXAS, INC. d/b/a 172 Cases that cite this headnote American Transitional Hospital, Petitioner, v. Teofilo PALACIOS and Maria Palacios, [3] Appeal and Error Costs and Allowances individually and a/n/f of Gloria Janeth Palacios and Rocio Daniela Palacios, Sanctions are generally reviewed under an abuse-of-discretion standard. minors, Maria Angelica Palacios, and Sentry Insurance, a mutual company, Respondents. 68 Cases that cite this headnote

No. 99–1311. | Argued Dec. 6, 2000. | Decided May 10, 2001. | [4] Health Rehearing Overruled June 28, 2001. Affidavits of merit or meritorious defense; expert affidavits Medical malpractice action was brought against hospital In determining the adequacy of an expert to recover for injuries patient allegedly suffered in fall at report under the Medical Liability and Insurance hospital. The 280th District Court, Harris County, Tony Improvement Act, the trial court should look Lindsay, J., dismissed case for failure to file expert report, no further than the report. Vernon's Ann.Texas as required by Medical Liability and Insurance Improvement Civ.St. art. 4590i, § 13.01(l). Act. Patient appealed. The Houston Court of Appeals, First District, reversed and remanded, 4 S.W.3d 857. On petition 9 Cases that cite this headnote for review, the Supreme Court, Hankinson, J., held that: (1) trial court's determination about adequacy of expert report [5] Health under Act is reviewed under abuse-of-discretion standard, and Affidavits of merit or meritorious defense; (2) expert's report did not provide fair summary of standard expert affidavits of care and how it was breached. For an expert's report to satisfy the requirements Court of Appeals' judgment reversed. of the Medical Liability and Insurance Improvement Act, the report need not marshal all the plaintiff's proof, but it must include the expert's opinion on each of the elements West Headnotes (12) identified in the statute. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l).

[1] Health 138 Cases that cite this headnote Necessity of Expert Testimony Expert testimony is necessary in medical- [6] Health malpractice cases. Vernon's Ann.Texas Civ.St. Affidavits of merit or meritorious defense; art. 4590i, § 13.01(d). expert affidavits 11 Cases that cite this headnote For an expert's report to constitute a good-faith effort under the Medical Liability and Insurance Improvement Act, the report must provide [2] Appeal and Error enough information to fulfill two purposes: first, Rulings on Motions Relating to Pleadings the report must inform the defendant of the specific conduct the plaintiff has called into

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

question; second, and equally important, the same requirements as the evidence offered in report must provide a basis for the trial court to a summary-judgment proceeding or at trial. conclude that the claims have merit. Vernon's Vernon's Ann.Texas Civ.St. art. 4590i, § Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6). 13.01(l), (r)(6).

485 Cases that cite this headnote 85 Cases that cite this headnote

[7] Health [11] Health Affidavits of merit or meritorious defense; Affidavits of merit or meritorious defense; expert affidavits expert affidavits A report that merely states the expert's Conclusory statement in expert's report that conclusions about the standard of care, breach, defendant hospital did not use precautions to and causation does not constitute a good-faith prevent patient's fall was not good-faith effort effort under the Medical Liability and Insurance to provide fair summary of standard of care Improvement Act. Vernon's Ann.Texas Civ.St. and how it was breached, and thus, dismissal of art. 4590i, § 13.01(l), (r)(6). medical malpractice action was warranted under Medical Liability and Insurance Improvement 262 Cases that cite this headnote Act; it could not be determined from that statement if expert believed that standard of care [8] Health required hospital to have monitored patient more Affidavits of merit or meritorious defense; closely, restrained him more securely, or done expert affidavits something else entirely. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6). An expert's report that omits any of the statutory requirements does not constitute a good-faith 141 Cases that cite this headnote effort under the Medical Liability and Insurance Improvement Act. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6). [12] Health Affidavits of merit or meritorious defense; 46 Cases that cite this headnote expert affidavits An expert's report does not constitute a good- [9] Health faith effort under the Medical Liability and Affidavits of merit or meritorious defense; Insurance Improvement Act if it simply states expert affidavits that he or she knows the standard of care and that it was or was not met. Vernon's Ann.Texas To avoid dismissal due to inadequacy of an Civ.St. art. 4590i, § 13.01(l), (r)(6). expert's report under the Medical Liability and Insurance Improvement Act, a plaintiff need 111 Cases that cite this headnote not present evidence in the report as if it were actually litigating the merits. Vernon's Ann.Texas Civ.St. art. 4590i, § 13.01(l), (r)(6).

36 Cases that cite this headnote Attorneys and Law Firms

*875 Matthew T. McCracken, John C. Marshall, James C. [10] Health Marrow, Dee L. Dawson, Marshall & McCraken, Houston, Affidavits of merit or meritorious defense; for Petitioner. expert affidavits D. John Leger, Leger & Coplen, Levon G. Hovnatanian, The expert's report in a medical malpractice Martin Disiere & Jefferson, Houston, Mickey C. Shyrock, action can be informal in that the information Law Office of Mickey C. Shyrock, Athens, for Respondents. in the report does not have to meet the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

Palacios and his family sued American Transitional and Opinion the treating doctors, respectively, for negligently failing to prevent the fall and negligently treating him after the fall. Justice HANKINSON delivered the opinion of the Court. After ninety days passed from the date the Palacioses filed In this medical-malpractice case we determine the standards suit, American Transitional, along with the other defendants, for reviewing an expert report under section 13.01 of moved to require the Palacioses to file a $7,500 cost bond, the Medical Liability and Insurance Improvement Act. as required by section 13.01(b) of the Medical Liability TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01. The trial and Insurance Improvement Act. See TEX.REV.CIV. STAT. court dismissed the Palacioses' medical-malpractice claims ANN.. art. 4590i, § 13.01(b) (authorizing a trial court against American Transitional Care Centers, Inc., d/b/a to order a plaintiff to file a $7,500 cost bond for each American Transitional Hospital, because it determined that defendant physician or health-care provider if the plaintiff the Palacioses' expert report did not show a good-faith effort has not complied with the expert-report or $5,000 cost-bond to provide a fair summary of the expert's opinions about requirement in section 13.01(a)); id. § 13.01(a) (requiring the the standard of care, breach, and causation, as required by plaintiff to file either an expert report or a $5,000 cost bond section 13.01. See id. § 13.01(d), (e), (l), (r)(6). The court of for each defendant physician or health-care provider within appeals, after evaluating the trial court's decision as it would a ninety days of filing suit). The trial court granted the motion, summary-judgment decision, reversed, holding that the report and the Palacioses filed a cost bond for each defendant. did meet the statutory requirements. 4 S.W.3d 857, 860. After 180 days passed from the date the Palacioses filed We hold that a trial court's decision to dismiss a case suit, American Transitional moved to dismiss the case against under section 13.01(e) is reviewed for abuse of discretion. it because the Palacioses did not file an expert report and We further hold that to constitute a good-faith effort to curriculum vitae, or nonsuit the claims against American provide a fair summary of an expert's opinions under section Transitional, as section 13.01(d) of the Act requires. Id. § 13.01(l ), an expert report must discuss the standard of care, 13.01(d), (e). The Palacioses moved for an extension of time breach, and causation with sufficient specificity to inform the to file the report, which the trial court granted. See id. § defendant of the conduct the plaintiff has called into question 13.01(f), (g). The Palacioses then filed a report prepared by and to provide a basis for the trial court to conclude that Dr. Catherine F. Bontke, who treated Palacios at the first the claims have merit. In this case, the trial court did not rehabilitation hospital. American Transitional again moved abuse its discretion in concluding that the challenged report to dismiss under section 13.01(e), claiming that the report does not meet the statutory requirements and in dismissing did not satisfy the statutory requirements. See id. § 13.01(l), with prejudice the claims against American Transitional. (r)(6). The trial court granted the motion, dismissed with Accordingly, we reverse the court of appeals' judgment and prejudice the claims against American Transitional, and dismiss with prejudice the Palacioses' claims. severed those claims to make the judgment against American Transitional final. See id. § 13.01(e). Teofilo Palacios suffered brain damage and other severe injuries following a two-story fall at work. After almost The Palacioses appealed, and with one justice dissenting, the a year in an intensive rehabilitation program, he was court of appeals reversed and remanded after using summary- transferred to American Transitional Hospital for further judgment review standards to evaluate the sufficiency of rehabilitation. Although Palacios at that time was able to the expert report. 4 S.W.3d at 860. After indulging every *876 communicate with others and respond to simple reasonable inference in the Palacioses' favor and eliminating commands, he required assistance with most daily tasks. In any deference to the trial court's decision, the court of appeals addition, due to the severity of his brain damage, Palacios' concluded that the trial court erred in dismissing the case physicians prescribed bed restraints for him. Nevertheless, because the Palacioses made a good-faith effort to provide while a patient at American Transitional, Palacios fell from a report that met the requirements of section 13.01(r)(6). his bed and required additional medical care for his injuries. Id. at 862–63. American Transitional petitioned for review His family claims that this fall caused him to sustain further challenging both the standard of review applied by the court brain injury, which impaired his ability to communicate with of appeals and the sufficiency of the Palacioses' report. others and to assist them in his care.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

[1] Texas courts have long recognized the necessity of requirements of subsections 13.01(l) and (r)(6) is a question expert testimony in medical-malpractice cases. E.g., Hart of law. They suggest that a trial court's decision on the v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965); Bowles v. adequacy of a report should be reviewed as a court would Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782 (1949). “There review a summary-judgment decision: that is, by indulging can be no other guide [than expert testimony], and where want every reasonable inference and resolving any doubts in the of skill and attention is not thus shown by expert evidence nonmovant's favor, and eliminating any deference to the trial applied to the facts, there is no evidence of it proper to be court's decision. We agree with American Transitional. submitted to the jury.” Hart, 399 S.W.2d at 792. Because expert testimony is crucial to a medical-malpractice case, [2] [3] The plain language of section 13.01 leads to the *877 knowing what specific conduct the plaintiff's experts conclusion that abuse of discretion is the proper standard. have called into question is critical to both the defendant's First, the statute directs the trial court to grant a motion ability to prepare for trial and the trial court's ability to challenging the adequacy of an expert report if it “appears evaluate the viability of the plaintiff's claims. This makes to the court” that the plaintiffs did not make a good-faith eliciting an expert's opinions early in the litigation an obvious effort to meet the statutory requirements. Id. § 13.01(l). place to start in attempting to reduce frivolous lawsuits. See This language plainly vests the trial court with discretion. HOUSE COMM. ON CIV. PRAC., BILL ANALYSIS, Tex. See TEX. GOV'T CODE § 312.002. (“[W]ords shall be H.B. 971, 74th Leg., R.S. (1995). given their ordinary meaning.”). Second, the statute states that dismissal under section 13.01(e) is a sanction: If the Accordingly, in section 13.01, the Legislature requires requirements of section 13.01(d) are not met, the court must medical-malpractice plaintiffs, within 180 days of filing suit, “enter an order as sanctions” dismissing the case and granting either to provide each defendant physician and health-care the defendant its costs and attorneys' fees. TEX.REV.CIV. provider with an expert report and the expert's curriculum STAT. ANN .. art. 4590i, § 13.01(e). Sanctions are generally vitae, or to nonsuit the claims. TEX.REV.CIV. STAT. ANN.. reviewed under an abuse-of-discretion standard. Koslow's v. art. 4590i, § 13.01(d). If the plaintiff fails within the time Mackie, 796 S.W.2d 700, 704 (Tex.1990). And we presume allowed either to provide the expert reports and curriculum the Legislature was aware of the standard of review ordinarily vitae, or to nonsuit the case, the trial court must sanction applied in sanctions cases when it explicitly identified a the plaintiff by dismissing the case with prejudice, awarding court's dismissal under section 13.01(e) as a sanction. *878 costs and attorney's fees to the defendant, and ordering the See McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125, 128 forfeiture of any applicable cost bond necessary to pay that (1943) ( “All statutes are presumed to be enacted by the award. Id. § 13.01(e). If the plaintiff does timely file a report, legislature with full knowledge of the existing condition of the defendant may move to challenge the adequacy of the the law and with reference to it.”). report, and the trial court must grant the motion if “it appears to the court ... that the report does not represent a good faith Nevertheless, the court of appeals concluded that the usual effort to comply with the definition of an expert report.” Id. standard of review for sanctions should not apply here. The § 13.01(l). The statute defines an expert report as “a written court reasoned that the provisions of article 4590i at issue report by an expert that provides a fair summary of the expert's here were intended to discourage frivolous lawsuits, while opinions ... regarding applicable standards of care, the manner sanctions, in contrast, are a response to litigation misconduct. in which the care rendered ... failed to meet the standards, We disagree with this distinction. and the causal relationship between that failure and the injury, harm, or damages claimed.” Id. § 13.01(r)(6). If a trial court Filing a frivolous lawsuit can be litigation misconduct subject determines that an expert report does not meet these statutory to sanction. See TEX.R. CIV. P. 13 (imposing sanctions for requirements and the time for filing a report has passed, filing groundless motions, pleadings, or other papers in bad it must then dismiss with prejudice the claims against the faith or for the purposes of harassment). And one purpose defendant who has challenged the report. Id. § 13.01(e). of the expert-report requirement is to deter frivolous claims. HOUSE COMM. ON CIV. PRAC., BILL ANALYSIS, Tex. American Transitional contends that a trial court's H.B. 971, 74th Leg., R.S. (1995). The Legislature has determination about the adequacy of an expert report determined that failing to timely file an expert report, or should be reviewed under an abuse-of-discretion standard. filing a report that does not evidence a good-faith effort to The Palacioses respond that whether a report meets the comply with the definition of an expert report, means that

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

the claim is either frivolous, or at best has been brought on each of those elements, the report must provide enough prematurely. See id. This is exactly the type of conduct for information to fulfill two purposes if it is to constitute a good- which sanctions are appropriate. See TransAmerican Natural faith effort. First, the report must inform the defendant of the Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex.1991) specific conduct the plaintiff has called into question. Second, (holding that “death-penalty” sanctions are appropriate when and equally important, the report must provide a basis for a party's discovery abuse justifies a presumption that its the trial court to conclude that the claims have merit. See 4 claims lack merit). For these reasons, we hold that an abuse- S.W.3d at 865 (Taft, J. dissenting); Wood v. Tice, 988 S.W.2d of-discretion standard of review applies to a trial court's 829, 830 (Tex.App.—San Antonio 1999, pet. denied) (noting decision to dismiss a case under section 13.01(e). that one of the purposes of article 4590i is to deter frivolous claims). [4] We next consider whether the trial court abused its discretion in dismissing the Palacioses' claims against [7] [8] [9] [10] A report that merely states the expert's American Transitional. The parties disagree about how conclusions about the standard of care, breach, and causation to determine a report's adequacy under section 13.01(l ). does not fulfill these two purposes. Nor can a report meet American Transitional argues that the trial court must engage these purposes and thus constitute a good-faith effort if it in a two-step process: (1) the trial court must determine omits any of the statutory requirements. See, e.g., Hart, 16 whether the report constitutes a fair summary of the expert's S.W.3d at 877 (holding that a report was inadequate because opinions, TEX.REV.CIV. STAT. ANN.. art. 4590i, § 13.01(r) it stated that the patient had a heart attack and the doctor (6); and (2) if the trial court concludes that the report is not breached the standard of care, without describing the standard a fair summary, it must then look outside the report at the of care); Wood, 988 S.W.2d at 831–32 (holding that an expert plaintiff's conduct to determine whether the plaintiff made report did not meet the statutory requirements because it did a good-faith effort to meet the statutory requirements, id. not name the defendants, state how the defendants breached § 13.01(l ). The Palacioses, on the other hand, argue that the standard of care, demonstrate causation and damages, or the statute requires only one inquiry—whether the report include a curriculum vitae). However, to avoid dismissal, a evidences a good-faith effort to provide a fair summary of the plaintiff need not present evidence in the report as if it were expert's opinions. According to the Palacioses, the trial court actually litigating the merits. The report can be informal in does not have to make any factual determinations because the that the information in the report does not have to meet the only relevant information is in the report itself. We agree with same requirements as the evidence offered in a summary- the Palacioses that a trial court should look no further than the judgment proceeding or at trial. See, e.g., TEX.R. CIV. P. report in conducting a section 13.01(l ) inquiry. 166(f) (setting out the requirements for the form and content of affidavits offered as summary-judgment proof); TEX.R. The issue for the trial court is whether “the report” represents EVID. 802 (stating that most hearsay is inadmissible). a good-faith effort to comply with the statutory definition of an expert report. Id. § 13.01(l ). That definition requires, as [11] American Transitional contends that Dr. Bontke's to each defendant, a fair summary of the expert's opinions report does not meet the statutory requirements because about the applicable standard of care, the manner in which the it does not represent a good-faith effort to provide a fair care failed to meet that standard, and the causal relationship summary of her opinion on the standard of care and how between that failure and the claimed injury. Id. § 13.01(r) American Transitional breached that standard. The Palacioses (6). Because the statute focuses on what the report discusses, respond that the following parts of Dr. Bontke's report the only information relevant to the inquiry is within the four establish these elements: corners of the document. Based on the available documentation I was able to [5] [6] Under subsections 13.01(l ) and (r)(6), the expert conclude that: Mr. Palacios fell from his bed on 5/14/94 report must represent only a good-faith effort to provide a while trying to get out of it on his own. The nursing notes fair summary of the expert's opinions. A report need not document that he was observed by nursing on the hour marshal all the plaintiff's proof, but it must include the expert's for two hours prior to the fall. In addition, ten minutes opinion on each of the elements identified in the statute. See before the fall, the nursing notes documents [sic] the his *879 Hart v. Wright, 16 S.W.3d 872, 877 (Tex.App.—Fort wrist/vest restraints were on. Yet, at the time of his fall Worth 2000, pet. denied). In setting out the expert's opinions he was found on the floor with his vest/wrist restraints on but not tied to the bed. It is unclear how he could untie

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001) 44 Tex. Sup. Ct. J. 720

statement of a standard of care. Neither the trial court nor all four of the restraints from the bedframe in under ten American Transitional would be able to determine from this minutes. Obviously, Mr. Palacios had a habit of trying to conclusory statement if Dr. Bontke believes that the standard undo his restraints and precautions to prevent his fall were of care required American Transitional to have monitored not properly utilized. Palacios more closely, restrained him more securely, or done .... something else entirely. “It is not sufficient for an expert to simply state that he or she knows the standard of care All in all, Mr. Palacios sustained a second brain injury with and concludes it was [or was not] met.” See Chopra v. a left subdural hematoma while he was an inpatient at [the Hawryluk, 892 S.W.2d 229, 233 (Tex.App.—El Paso 1995, Hospital].... [I]n my opinion, the medical care rendered to writ denied). Knowing only that the expert believes that Mr. Palacios at the time of his second brain injury was American Transitional did not take precautions to prevent below the accepted and expected standard of care which the fall might be useful if American Transitional had an he could expect to receive. Moreover, this [sic] below the absolute duty to prevent falls from its hospital beds. But as accepted standard of care extends to both the cause of the a general rule, res ipsa loquitur does not apply in medical- second injury as well as the subsequent treatment.... malpractice cases. TEX.REV.CIV. STAT. ANN.. art. 4590i, § 7.01 (limiting res ipsa loquitur in medical malpractice to The Palacioses rely mostly on one sentence in the report the limited classes of cases to which it applied as of August to establish the standard of care: “Mr. Palacios had a habit 29, 1977); Haddock v. Arnspiger, 793 S.W.2d 948, 951 of *880 trying to undo his restraints and precautions to (Tex.1990). prevent his fall were not properly utilized.” They argue that the inference can be made from that sentence, along with the When the expert report's conclusory statements do not put statement that “[i]t is unclear how he could untie all four of the the defendant or the trial court on notice of the conduct restraints from the bed frame in under ten minutes,” that Dr. complained of, section 13.01(l ) affords the trial court no Bontke believes American Transitional's staff should have discretion but to conclude, as the trial court did here, that tied the restraints to the bed more securely. the report does not represent a good-faith effort to provide a fair summary of the standard of care and how it was [12] The standard of care for a hospital is what an breached, as section 13.01(r)(6) requires. And because the ordinarily prudent hospital would do under the same or statutory 180 day time period had passed when the trial court similar circumstances. See Birchfield v. Texarkana Mem'l here made that determination, section 13.01(e) required the Hosp., 747 S.W.2d 361, 366 (Tex.1987). Identifying the court to dismiss with prejudice the Palacioses' claims against standard of care is critical: Whether a defendant breached his American Transitional. See TEX.REV.CIV. STAT. ANN.. or her duty to a patient cannot be determined absent specific art. 4590i, § 13.01(e). Accordingly, we reverse the court of information about what the defendant should have done appeals' judgment and dismiss with prejudice the Palacioses' differently. “While a ‘fair summary’ is something less than a claims. full statement of the applicable standard of care and how it was breached, even a fair summary must set out what care was expected, but not given.” 4 S.W.3d at 865 (Taft, J. dissenting). All Citations The statement the Palacioses rely upon—that precautions to prevent Palacios' fall were not properly used—is not a 46 S.W.3d 873, 44 Tex. Sup. Ct. J. 720

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 § 217.11. Standards of Nursing Practice, 22 TX ADC § 217.11

Texas Administrative Code Title 22. Examining Boards Part 11. Texas Board of Nursing Chapter 217. Licensure, Peer Assistance and Practice

22 TAC § 217.11 Tex. Admin. Code tit. 22, § 217.11

§ 217.11. Standards of Nursing Practice

Currentness

The Texas Board of Nursing is responsible for regulating the practice of nursing within the State of Texas for Vocational Nurses, Registered Nurses, and Registered Nurses with advanced practice authorization. The standards of practice establish a minimum acceptable level of nursing practice in any setting for each level of nursing licensure or advanced practice authorization. Failure to meet these standards may result in action against the nurse's license even if no actual patient injury resulted.

(1) Standards Applicable to All Nurses. All vocational nurses, registered nurses and registered nurses with advanced practice authorization shall:

(A) Know and conform to the Texas Nursing Practice Act and the board's rules and regulations as well as all federal, state, or local laws, rules or regulations affecting the nurse's current area of nursing practice;

(B) Implement measures to promote a safe environment for clients and others;

(C) Know the rationale for and the effects of medications and treatments and shall correctly administer the same;

(D) Accurately and completely report and document:

(i) the client's status including signs and symptoms;

(ii) nursing care rendered;

(iii) physician, dentist or podiatrist orders;

(iv) administration of medications and treatments;

(v) client response(s); and

(vi) contacts with other health care team members concerning significant events regarding client's status;

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 217.11. Standards of Nursing Practice, 22 TX ADC § 217.11

(E) Respect the client's right to privacy by protecting confidential information unless required or allowed by law to disclose the information;

(F) Promote and participate in education and counseling to a client(s) and, where applicable, the family/significant other(s) based on health needs;

(G) Obtain instruction and supervision as necessary when implementing nursing procedures or practices;

(H) Make a reasonable effort to obtain orientation/training for competency when encountering new equipment and technology or unfamiliar care situations;

(I) Notify the appropriate supervisor when leaving a nursing assignment;

(J) Know, recognize, and maintain professional boundaries of the nurse-client relationship;

(K) Comply with mandatory reporting requirements of Texas Occupations Code Chapter 301 (Nursing Practice Act), Subchapter I, which include reporting a nurse:

(i) who violates the Nursing Practice Act or a board rule and contributed to the death or serious injury of a patient;

(ii) whose conduct causes a person to suspect that the nurse's practice is impaired by chemical dependency or drug or alcohol abuse;

(iii) whose actions constitute abuse, exploitation, fraud, or a violation of professional boundaries; or

(iv) whose actions indicate that the nurse lacks knowledge, skill, judgment, or conscientiousness to such an extent that the nurse's continued practice of nursing could reasonably be expected to pose a risk of harm to a patient or another person, regardless of whether the conduct consists of a single incident or a pattern of behavior.

(v) except for minor incidents (Texas Occupations Code §§ 301.401(2), 301.419, 22 TAC § 217.16), peer review (Texas Occupations Code §§ 301.403, 303.007, 22 TAC § 217.19), or peer assistance if no practice violation (Texas Occupations Code § 301.410) as stated in the Nursing Practice Act and Board rules (22 TAC Chapter 217).

(L) Provide, without discrimination, nursing services regardless of the age, disability, economic status, gender, national origin, race, religion, health problems, or sexual orientation of the client served;

(M) Institute appropriate nursing interventions that might be required to stabilize a client's condition and/or prevent complications;

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 217.11. Standards of Nursing Practice, 22 TX ADC § 217.11

(N) Clarify any order or treatment regimen that the nurse has reason to believe is inaccurate, non-efficacious or contraindicated by consulting with the appropriate licensed practitioner and notifying the ordering practitioner when the nurse makes the decision not to administer the medication or treatment;

(O) Implement measures to prevent exposure to infectious pathogens and communicable conditions;

(P) Collaborate with the client, members of the health care team and, when appropriate, the client's significant other(s) in the interest of the client's health care;

(Q) Consult with, utilize, and make referrals to appropriate community agencies and health care resources to provide continuity of care;

(R) Be responsible for one's own continuing competence in nursing practice and individual professional growth;

(S) Make assignments to others that take into consideration client safety and that are commensurate with the educational preparation, experience, knowledge, and physical and emotional ability of the person to whom the assignments are made;

(T) Accept only those nursing assignments that take into consideration client safety and that are commensurate with the nurse's educational preparation, experience, knowledge, and physical and emotional ability;

(U) Supervise nursing care provided by others for whom the nurse is professionally responsible; and

(V) Ensure the verification of current Texas licensure or other Compact State licensure privilege and credentials of personnel for whom the nurse is administratively responsible, when acting in the role of nurse administrator.

(2) Standards Specific to Vocational Nurses. The licensed vocational nurse practice is a directed scope of nursing practice under the supervision of a registered nurse, advanced practice registered nurse, physician's assistant, physician, podiatrist, or dentist. Supervision is the process of directing, guiding, and influencing the outcome of an individual's performance of an activity. The licensed vocational nurse shall assist in the determination of predictable healthcare needs of clients within healthcare settings and:

(A) Shall utilize a systematic approach to provide individualized, goal-directed nursing care by:

(i) collecting data and performing focused nursing assessments;

(ii) participating in the planning of nursing care needs for clients;

(iii) participating in the development and modification of the comprehensive nursing care plan for assigned clients;

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 § 217.11. Standards of Nursing Practice, 22 TX ADC § 217.11

(iv) implementing appropriate aspects of care within the LVN's scope of practice; and

(v) assisting in the evaluation of the client's responses to nursing interventions and the identification of client needs;

(B) Shall assign specific tasks, activities and functions to unlicensed personnel commensurate with the educational preparation, experience, knowledge, and physical and emotional ability of the person to whom the assignments are made and shall maintain appropriate supervision of unlicensed personnel.

(C) May perform other acts that require education and training as prescribed by board rules and policies, commensurate with the licensed vocational nurse's experience, continuing education, and demonstrated licensed vocational nurse competencies.

(3) Standards Specific to Registered Nurses. The registered nurse shall assist in the determination of healthcare needs of clients and shall:

(A) Utilize a systematic approach to provide individualized, goal-directed, nursing care by:

(i) performing comprehensive nursing assessments regarding the health status of the client;

(ii) making nursing diagnoses that serve as the basis for the strategy of care;

(iii) developing a plan of care based on the assessment and nursing diagnosis;

(iv) implementing nursing care; and

(v) evaluating the client's responses to nursing interventions;

(B) Delegate tasks to unlicensed personnel in compliance with Chapter 224 of this title, relating to clients with acute conditions or in acute are environments, and Chapter 225 of this title, relating to independent living environments for clients with stable and predictable conditions.

(4) Standards Specific to Registered Nurses with Advanced Practice Authorization. Standards for a specific role and specialty of advanced practice nurse supersede standards for registered nurses where conflict between the standards, if any, exist. In addition to paragraphs (1) and (3) of this subsection, a registered nurse who holds authorization to practice as an advanced practice nurse (APN) shall:

(A) Practice in an advanced nursing practice role and specialty in accordance with authorization granted under Board Rule Chapter 221 of this title (relating to practicing in an APN role; 22 TAC Chapter 221) and standards set out in that chapter.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 § 217.11. Standards of Nursing Practice, 22 TX ADC § 217.11

(B) Prescribe medications in accordance with prescriptive authority granted under Board Rule Chapter 222 of this title (relating to APNs prescribing; 22 TAC Chapter 222) and standards set out in that chapter and in compliance with state and federal laws and regulations relating to prescription of dangerous drugs and controlled substances.

Credits Source: The provisions of this § 217.11 adopted to be effective September 28, 2004, 29 TexReg 9192; amended to be effective November 15, 2007, 32 TexReg 8165.

Current through 40 Tex.Reg. No. 3730, dated June 12, 2015, as effective on or before June 19, 2015

22 TAC § 217.11, 22 TX ADC § 217.11

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 § 74.351. Expert Report, TX CIV PRAC & REM § 74.351

Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annos) Title 4. Liability in Tort Chapter 74. Medical Liability (Refs & Annos) Subchapter H. Procedural Provisions (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 74.351

§ 74.351. Expert Report

Effective: September 1, 2013 Currentness

(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant's original answer is filed, serve on that party or the party's attorney 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. The date for serving the report may be extended by written agreement of the affected parties. 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.

(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), enter an order that:

(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider; and

(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.

(c) If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. If the claimant does not receive notice of the court's ruling granting the extension until after the 120-day deadline has passed, then the 30-day extension shall run from the date the plaintiff first received the notice.

(d) to (h) [Subsections (d)-(h) reserved]

(i) Notwithstanding any other provision of this section, a claimant may satisfy any requirement of this section for serving an expert report by serving reports of separate experts regarding different physicians or health care providers or regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation. Nothing in this section shall be construed to mean that a single expert must address all liability and causation issues with respect to all physicians or health care providers or with respect to both liability and causation issues for a physician or health care provider.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 74.351. Expert Report, TX CIV PRAC & REM § 74.351

(j) Nothing in this section shall be construed to require the serving of an expert report regarding any issue other than an issue relating to liability or causation.

(k) Subject to Subsection (t), an expert report served under this section:

(1) is not admissible in evidence by any party;

(2) shall not be used in a deposition, trial, or other proceeding; and

(3) shall not be referred to by any party during the course of the action for any purpose.

(l) 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).

(m) to (q) [Subsections (m)-(q) reserved]

(r) In this section:

(1) “Affected parties” means the claimant and the physician or health care provider who are directly affected by an act or agreement required or permitted by this section and does not include other parties to an action who are not directly affected by that particular act or agreement.

(2) “Claim” means a health care liability claim.

(3) [reserved]

(4) “Defendant” means a physician or health care provider against whom a health care liability claim is asserted. The term includes a third-party defendant, cross-defendant, or counterdefendant.

(5) “Expert” means:

(A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of medical care, an expert qualified to testify under the requirements of Section 74.401;

(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;

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 74.351. Expert Report, TX CIV PRAC & REM § 74.351

(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;

(D) 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 for a dentist, a dentist or physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence; or

(E) 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 for a podiatrist, a podiatrist or physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence.

(6) “Expert report” means 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.

(s) Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in a health care liability claim is stayed except for the acquisition by the claimant of information, including medical or hospital records or other documents or tangible things, related to the patient's health care through:

(1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure;

(2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and

(3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.

(t) If an expert report is used by the claimant in the course of the action for any purpose other than to meet the service requirement of Subsection (a), the restrictions imposed by Subsection (k) on use of the expert report by any party are waived.

(u) Notwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not more than two depositions before the expert report is served as required by Subsection (a).

Credits Added by Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003. Amended by Acts 2005, 79th Leg., ch. 635, § 1, eff. Sept. 1, 2005; Acts 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, eff. Sept. 1, 2013.

Notes of Decisions (1880)

V. T. C. A., Civil Practice & Remedies Code § 74.351, TX CIV PRAC & REM § 74.351

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 § 74.351. Expert Report, TX CIV PRAC & REM § 74.351

Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 § 74.402. Qualifications of Expert Witness in Suit Against..., TX CIV PRAC & REM...

Vernon's Texas Statutes and Codes Annotated Civil Practice and Remedies Code (Refs & Annos) Title 4. Liability in Tort Chapter 74. Medical Liability (Refs & Annos) Subchapter I. Expert Witnesses (Refs & Annos)

V.T.C.A., Civil Practice & Remedies Code § 74.402

§ 74.402. Qualifications of Expert Witness in Suit Against Health Care Provider

Effective: September 1, 2003 Currentness

(a) For purposes of this section, “practicing health care” includes:

(1) training health care providers in the same field as the defendant health care provider at an accredited educational institution; 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.

(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 a field 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 training 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.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 74.402. Qualifications of Expert Witness in Suit Against..., TX CIV PRAC & REM...

(d) The court shall apply the criteria specified in Subsections (a), (b), and (c) in determining whether an expert is qualified to offer expert testimony on the issue of whether the defendant health care provider departed from accepted standards of health care but may depart from those criteria if, under the circumstances, the court determines that there is good reason to admit the expert's testimony. The court shall state on the record the reason for admitting the testimony if the court departs from the criteria.

(e) This section does not prevent a health care provider who is a defendant, or an employee of the defendant health care provider, from qualifying as an expert.

(f) A pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the date of the witness's deposition. If circumstances arise after the date on which the objection must be made that could not have been reasonably anticipated by a party before that date and that the party believes in good faith provide a basis for an objection to a witness's qualifications, and if an objection was not made previously, this subsection does not prevent the party from making an objection as soon as practicable under the circumstances. The court shall conduct a hearing to determine whether the witness is qualified as soon as practicable after the filing of an objection and, if possible, before trial. If the objecting party is unable to object in time for the hearing to be conducted before the trial, the hearing shall be conducted outside the presence of the jury. This subsection does not prevent a party from examining or cross-examining a witness at trial about the witness's qualifications.

Credits Added by Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003.

Notes of Decisions (82)

V. T. C. A., Civil Practice & Remedies Code § 74.402, TX CIV PRAC & REM § 74.402 Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2