Mendi Ramsay and Rochelle Alvarado v. Holly Ferguson, Individually, and as Personal Representative of the Estate of Cynthia Pierce

• Court: Court of Appeals of Texas
• Decided: February 23, 2024
• Docket: 07-23-00392-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00392-CV

MENDI RAMSAY AND ROCHELLE ALVARADO, APPELLANTS

V.

HOLLY FERGUSON, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CYNTHIA PIERCE, DECEASED, APPELLEE

On Appeal from the 53rd District Court Travis County, Texas1 Trial Court No. D-1-GN-23-000736, Honorable Maria Cantú Hexsel, Presiding

February 23, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellants, Mendi Ramsay and Rochelle Alvarado, appeal the trial court’s denial

of their motion to dismiss this health care liability lawsuit filed against them by Holly

1 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should a conflict exist between precedent of the Third Court of Appeals and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3. Ferguson, individually and as personal representative of the Estate of Cynthia Pierce.

We affirm the trial court’s order.

BACKGROUND2

Ferguson’s 73-year-old mother, Cynthia Pierce, was a resident at Harvest

Renaissance Austin, an assisted living facility. In February of 2021, during Winter Storm

Uri, the facility lost power and did not have sufficient heat. On the morning of February

17, Pierce was in her room, showing signs of illness and disorientation. Her bedding was

soiled. Staff members washed Pierce and returned her to her bed, but the window in her

room was left open. That afternoon, Pierce was found disoriented and cold. Emergency

responders arrived and recorded her temperature at 94.2 degrees. They transported

Pierce to a hospital, where she died of hypothermia that same day.

Ferguson filed this lawsuit against Harvest Renaissance; its executive director,

Ramsay; and its wellness director, Alvarado, a licensed vocational nurse.3 Ferguson

asserted, among other things, that Harvest Renaissance, Ramsay, and Alvarado failed

to provide a safe environment for Pierce, failed to appropriately monitor Pierce’s

condition, failed to properly equip the facility with emergency power, and failed to take

reasonable measures to prevent Pierce from developing hypothermia.

As required by Chapter 74 of the Civil Practice and Remedies Code, Ferguson

filed expert reports to support her health care liability claims. Licensed nursing home

2 Given the procedural posture of this case, we draw background facts from the allegations in

Ferguson’s pleadings. 3 Harvest Renaissance is not a party to this appeal.

2 administrators Gregory D. Bearce and William H. James, Jr., provided reports addressing

the applicable standard of care and the breach thereof, and forensic pathologist Paul S.

Uribe, M.D., provided a report addressing Pierce’s cause of death. Appellants filed a

motion to dismiss in which they argued that Ferguson’s experts were not qualified to

address standard of care and breach because they are not medical care providers who

treat patients. The trial court denied Appellants’ motion, and Appellants brought this

interlocutory appeal.

ANALYSIS

Under the Texas Medical Liability Act (TMLA), a health care liability claim may not

proceed until the plaintiff has made a good-faith effort to demonstrate that a qualified

medical expert believes that a defendant’s conduct breached the applicable standard of

care and caused the alleged injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l),

(r)(6). A claimant may satisfy the expert report requirement by “serving reports of

separate experts . . . regarding different issues arising from the conduct of a physician or

health care provider, such as issues of liability and causation.” Id. § 74.351(i); Mitchell v.

Satyu, No. 05-14-00479-CV, 2015 Tex. App. LEXIS 6127, at *12 n.3 (Tex. App.—Dallas

June 17, 2015, no pet.) (mem. op.) (noting “expert report requirement may be satisfied by

utilizing more than one expert report” and that “a court may read the reports together”).

The purpose of an expert report under the TMLA is to inform the defendant of the

specific conduct the plaintiff has called into question and to provide the trial court with a

basis to determine whether the plaintiff’s claims have merit. Patel v. Williams, 237 S.W.3d

901, 906 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The expert report requirement

3 is intended to “weed out frivolous malpractice claims in the early stages of litigation, not

to dispose of potentially meritorious claims.” Abshire v. Christus Health Se. Tex., 563

S.W.3d 219, 223 (Tex 2018) (per curiam). If a claimant fails to file an adequate expert

report as required by the TMLA, the trial court must dismiss the suit with prejudice and

award reasonable attorney’s fees and costs to the affected defendant. E.D. ex rel. B.O.

v. Tex. Health Care, P.L.L.C., 644 S.W.3d 660, 664 (Tex. 2022) (per curiam). We review

a trial court’s ruling on a motion to dismiss under section 74.351 for an abuse of discretion.

American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.

2001).

Issue 1: Expert Qualifications

In their first issue, Appellants assert that the trial court abused its discretion in

denying their motion to dismiss because Ferguson’s proffered experts are not qualified to

opine on the applicable health care standards or on Appellants’ alleged breach of those

standards. Appellants do not challenge the adequacy of the expert reports in addressing

the applicable standards of care, breach, or causation.

Under the TMLA, with respect to a person opining as to whether a health care

provider departed from accepted standards of health care, an expert is someone who is

“qualified to testify under the requirements of Section 74.402” of the Civil Practice and

Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(B). Section 74.402,

in turn, provides that a person may qualify as an expert 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 is an individual, at the

4 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 the diagnosis, care, or

treatment of the injury; and (3) is qualified on the basis of training or experience. Id. at

§ 74.402(b). In determining whether an expert is qualified on the basis of training or

experience, the trial court considers whether 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. Id. § 74.402(c). A person offering an expert report must establish

that he has expertise regarding “the specific issue before the court which would qualify

the expert to give an opinion on that particular subject.” In re Windisch, 138 S.W.3d 507,

512 (Tex. App.—Amarillo 2004, orig. proceeding) (per curiam) (citing Broders v. Heise,

924 S.W.2d 148, 153 (Tex. 1996)). The analysis is focused on “the very matter” on which

the expert is to give an opinion. Broders, 924 S.W.2d at 153.

Appellants claim that two of Ferguson’s experts, Bearce and James, are

“unqualified as a matter of law” because they are “businessmen, not licensed health care

professionals,” and that they have no training in the diagnosis, care, or treatment of the

physical infirmity that caused Pierce’s illness and death. However, the statutory definition

of “health care provider” includes a director, manager, or employee of a health care

institution and “health care” includes any act performed by a health care provider if it

relates to a patient’s medical care, treatment, or confinement. TEX. CIV. PRAC. & REM.

CODE ANN. § 74.001(a)(12)(A)(vii), (B); (a)(10). Therefore, licensed nursing home

5 administrators may qualify as experts under the statute.4 See, e.g., Hollingsworth v.

Springs, 353 S.W.3d 506, 516–18 (Tex. App.—Dallas 2011, no pet.) (health care

administration consultant qualified by training and experience as hospital administrator to

offer expert opinions on accepted standards of care for health care providers providing

administrative services). Moreover, Ferguson’s claims against Appellants do not arise

from the diagnosis, care, or treatment of Pierce’s hypothermia. Rather, her claims allege

that the assisted living facility and its staff failed to provide Pierce with a safe physical

environment and that this failure led to Pierce suffering from hypothermia. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.001(a)(13) (including departures from accepted standards

of administrative services within definition of “health care liability claim”). Therefore, an

expert providing an expert report in this case must demonstrate expertise in the standard

of care applicable to an assisted living facility in maintaining a safe physical environment

for its residents. See, e.g., Christian Care Ctrs., Inc. v. Golenko, 328 S.W.3d 637, 645–

46 (Tex. App.—Dallas 2010, pet. denied) (in suit against nursing home in which resident

with Alzheimer’s disease grabbed another resident’s walker, causing resident to fall, hit

her head, and die, court concluded that licensed nursing home administrator was qualified

to opine on standard of care applicable to nursing home in admitting and assessing

resident with Alzheimer’s disease).

4 Appellants assert that Bearce and James specifically cannot opine on the standards of care

applicable to Alvarado, because she is a licensed vocational nurse. However, the qualification inquiry does not focus on the specialty of the medical expert, but instead on “whether the proffered expert has ‘knowledge, skill, experience, training or education’ regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.” Tenet Hosps. Ltd. v. Love, 347 S.W.3d 748, 750 (Tex. App.—El Paso 2011, no pet.).

6 Bearce is a licensed nursing home administrator. He has been licensed to provide

administrative oversight in such facilities for more than 35 years. Bearce is currently the

executive director of a continuing care retirement community providing residential living

services, including assisted living, memory support, and skilled nursing services. He has

provided administrative oversight for several skilled nursing facilities and assisted living

and memory support programs. Bearce is on the faculty of the Davis School of

Gerontology at the University of Southern California, Los Angeles, and has taught

graduate-level classes in aging services management.

James is a licensed nursing home administrator with a 30-year career overseeing

the operations of assisted living, skilled nursing, and memory support communities. He

served as the chief executive officer of a 350-resident continuing care/life plan retirement

community for nine years and as chief executive officer of a 400-resident continuing care

retirement community for twelve years. Before that, he worked as executive director or

director at three different communities providing aging care services. His curriculum vitae

reflects experience with staffing, facilities development, and emergency preparedness

planning.

As shown in their reports, both Bearce and James have experience and expertise

with policies and procedures for the provision of care to residents of assisted living

facilities. Bearce and James qualify as experts under section 74.402 because they are

practicing health care providers with the requisite licensing, education, and experience in

7 administration necessary to fulfill the requirements of the statute.5 See Hollingsworth,

353 S.W.3d at 516–18.

As to Dr. Uribe, Appellants allege that he has “never practiced health care in any

field that treats seniors like Ms. Pierce” and he lacks the qualifications to opine on the

standards for her health care. They claim that “[w]hile Dr. Uribe may be qualified to opine

on Ms. Pierce’s cause of death, he is not qualified to opine on the standards for her health

care, and thus, his opinions do not satisfy the TMLA.” However, given that Bearce and

James are qualified to speak to the applicable standards of care in this case, it is not

necessary for this Court to determine whether Dr. Uribe is also qualified to opine on those

matters. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(i) (TMLA allows plaintiff to use

multiple expert reports to satisfy any of Act’s requirements).

Dr. Uribe’s report asserts he is providing an expert report “on Ms. Pierce’s cause

of death.” See id. §§ 74.351(r)(5)(C); 74.403(a) (only a physician is qualified to render

expert report opinion as to causation). He opines that Pierce’s cause of death was

hypothermia, as stated on her death certificate. Noting the cold temperatures and lack of

power at Harvest Renaissance, Dr. Uribe concludes that the conditions at the facility

“could and did cause Ms. Pierce’s death through hypothermia.” Dr. Uribe’s report shows

that he is a medical doctor and actively practicing forensic pathologist. He is board-

certified in anatomic, clinical, and forensic pathology by the American Board of Pathology.

Dr. Uribe is licensed to practice medicine in multiple states and has years of experience

5 Although James is now retired, his report and curriculum vitae reflect that he was practicing

hospital administration at the time this claim arose. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1).

8 as a medical examiner conducting post-mortem examinations. He has also served as the

director of the office of the Armed Forces Medical Examiner and as the chief of the

Department of Pathology at Martin Army Community Hospital.

Considering Dr. Uribe’s years of training in forensic pathology, his experience as

a medical examiner, and the more than 1500 autopsies he has performed, we cannot

conclude that the trial court abused its discretion by determining that Dr. Uribe is qualified

to render an opinion that Pierce’s death was caused by hypothermia resulting from the

conditions at Harvest Renaissance. See Van Ness v. ETMC First Physicians, 461 S.W.3d

140, 144 (Tex. 2015) (in exercising discretion, trial court must review report, sort its

contents, resolve any inconsistencies, and decide whether report demonstrates good faith

effort to show plaintiff’s claims have merit).

For the foregoing reasons, the trial court did not abuse its discretion by denying

Appellants’ motion to dismiss for failure to comply with the expert report requirements of

Chapter 74.

Issue 2: Costs and Attorney’s Fees

Appellants’ second issue concerns the trial court’s refusal to award Appellants their

reasonable costs and attorney’s fees. Because we conclude that Appellants are not

entitled to dismissal, they are not entitled to costs and attorney’s fees under Chapter 74,

and we need not address this issue. See TEX. R. APP. P. 47.1.

9 CONCLUSION

Having concluded that the trial court did not abuse its discretion in denying

Appellants’ motion to dismiss, we affirm the trial court’s order.

Judy C. Parker Justice