PM Management - Wurzbach NC, LLC D/B/A TRISUN Care Center Wurzbach v. Betty Jones as Next Friend of Roberta Roberts

• Court: Court of Appeals of Texas
• Decided: February 3, 2010
• Docket: 04-09-00506-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-09-00506-CV

PM MANAGEMENT - WURZBACH NC, LLC D/B/A TRISUN CARE CENTER WURZBACH, Appellant

v.

Betty JONES as Next Friend of Roberta Roberts, Appellee

From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2009-CI-00771 Honorable David Berchelmann, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Chief Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice

Delivered and Filed: February 3, 2010

AFFIRMED

This accelerated interlocutory appeal arises from a healthcare liability claim filed by

Appellee Betty Jones, as next friend of Roberta Roberts. The issue is whether the trial court

abused its discretion in concluding that Jones’ expert report complies with the requirements of

section 74.351 of the Texas Civil Practice and Remedies Code. We affirm the judgment of the

trial court. 04-09-00506-CV

BACKGROUND

Jones filed suit on January 16, 2009 against Appellant PM Management—Wurzbach NC,

LLC d/b/a TRISUN Care Center—Wurzbach (“TRISUN”), alleging negligence in the medical

care and treatment of Roberts. Jones alleged that Roberts, a resident of TRISUN in June 2008,

fell and broke her hip as a result of TRISUN’s failure to adequately care for her. After Jones

served TRISUN with the expert report of Dr. Michael Zeitlin, TRISUN filed a motion to dismiss

asserting that the report failed to comply with the statutory requirements of section 74.351. TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351 (Vernon 2005). The trial court denied the motion to

dismiss. In a single issue on appeal, TRISUN claims the trial court abused its discretion in

denying the motion to dismiss because Jones’ expert report failed to establish that Dr. Zeitlin is

properly qualified to offer expert opinions concerning: (1) the applicable standard of care; and

(2) the cause of Roberts’ injury.

STANDARD OF REVIEW

An appellate court reviews a trial court’s decision regarding the adequacy of an expert

report under an abuse of discretion standard. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52

(Tex. 2002). An abuse of discretion occurs when a trial court “acts in an arbitrary or

unreasonable manner without reference to any guiding rules or principles.” Id. We may not

substitute our judgment for the trial court’s judgment. Id. Furthermore, an appellate court may

not determine the trial court abused its discretion merely because we would have decided the

matter differently. See Clayton v. Moore, 224 S.W.3d 440, 444 (Tex. App.—Dallas 2007, no

pet.).

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DR. ZEITLIN’S QUALIFICATIONS

TRISUN argues that Dr. Zeitlin is not qualified to provide the opinion expressed in his

report because the report failed to show that Dr. Zeitlin possessed the particular knowledge, skill,

experience, training or education to provide an opinion on the standard of care and proximate

cause of the alleged injury. Specifically, TRISUN complains that Dr. Zeitlin’s curriculum vitae

(“CV”) is inaccurate, that his board certification in family practice has lapsed, and likewise, that

he no longer retains the special certification in geriatrics. Jones responds that this court may not

look outside the expert’s report to determine its adequacy.

A person may qualify as an expert witness on whether a health care provider departed

from the standard of care only if that person: (1) is practicing health care in a field of practice

that involves the same type of care or treatment at the time such testimony is given or was

practicing that type of health care at the time the claim arose; (2) has knowledge of the accepted

standards of care involved in the case; and (3) is qualified on the basis of training or experience

to offer an expert opinion regarding those accepted standards of medical care. TEX. CIV. PRAC.

& REM. CODE ANN. § 74.402(b) (Vernon 2005). In addition, the court must consider whether, at

the time the claim arose or at the time the testimony is given, the witness is board certified or has

other substantial training or experience in an area of medical practice relevant to the claim, and is

actively participating in rendering medical care relevant to the claim. Id. at § 74.401(c).

TRISUN argues that Dr. Zeitlin is no longer board certified in family or geriatric

medicine. However, we need not decide whether we can look outside the expert report in a case

such as this because the expert report reflects substantial training or experience in the area of

geriatric practice relevant to this claim. See id. Even if we assume that Dr. Zeitlin’s board

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certifications have lapsed, his training and experience make him sufficiently qualified in this

case.

According to the expert report, Dr. Zeitlin’s practice has been focused on geriatric

medicine, and he is the author of several articles relating to that subject. His resume reflects

post-graduate training and certification in the area of geriatrics and care of the elderly. We note

that Dr. Zeitlin’s experience in geriatric medicine, as set forth in his CV, is significant and he

continues to be on staff at St. Francis Nursing Home and was on staff with Promise Long Term

Acute Care Hospital and Innova Hospital at the time of the event. 1 His employment history

reflects several positions devoted to the provision of care to the elderly, in both private practice

and in residential settings. Dr. Zeitlin states that he has been involved in patient care

management, quality assurance management, and interdisciplinary activities pertaining to

nursing care. He also has been a geriatrician consultant to the Bexar County Medical Society

and multiple senior wellness centers. As a consequence, the statement in his report that he is

familiar with the standard of care applicable to doctors and nurses providing care to patients in a

nursing home setting is supported by his CV and report. Dr. Zeitlin further provides in his report

that he has supervised treatment and care of patients in nursing home facilities like TRISUN to

patients like Roberts who suffered a broken hip as the result of a fall. As someone who cares for

geriatric patients, Dr. Zeitlin has the requisite skill and knowledge to opine that because Roberts

was at a high risk for falls, she should not have been left alone for long periods of time in a place

where she was likely to fall and hurt herself.

1 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(c) (Vernon 2005) (“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.”)

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We, therefore, conclude that Dr. Zeitlin’s qualifications, as set forth in his report and CV,

sufficiently qualify him to opine on the accepted standards of care, applicable to TRISUN and

the nurses caring for Roberts, and the alleged breach of that standard of care. Likewise, Dr.

Zeitlin’s qualifications qualify him to opine on the cause of Roberts’ injuries. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.401(c). We affirm the trial court’s order denying TRISUN’s

motion to dismiss.

Rebecca Simmons, Justice

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