NUMBER 13-07-121-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RENAISSANCE SURGICAL CENTERS - SOUTH TEXAS, L.L.P., RENAISSANCE SURGICAL CENTERS - SOUTH TEXAS, INC., RENAISSANCE SURGICAL CENTER SOUTH TEXAS, L.L.P., AND RENAISSANCE HEALTHCARE SYSTEMS, INC., Appellants,
v.
EVA NELDA JIMENEZ, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF MARIO M. JIMENEZ, M.D., NATALIA CELESTE JIMENEZ, AND ANTONIO MANUEL JIMENEZ, Appellees.
On appeal from the 332nd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION Before Justices Yañez, Rodriguez and Benavides Memorandum Opinion by Justice Benavides
Appellants, Renaissance Surgical Centers–South Texas L.L.P., Renaissance
Surgical Centers–South Texas, Inc., Renaissance Surgical Center South Texas, L.L.P., and Renaissance Healthcare Systems, Inc. (collectively “Renaissance”), appeal the denial
of their motion to dismiss health care liability claims brought by appellees, Eva Nelda
Jimenez, individually and as executrix of the estate of Mario M. Jimenez, M.D., Natalia
Celeste Jimenez, and Antonio Manuel Jimenez (the Jimenezes). By a single issue,
Renaissance argues that the expert reports submitted by the Jimenezes do not constitute
a good-faith effort to comply with the expert report requirements. See TEX . CIV. PRAC . &
REM . CODE ANN . § 74.351(a), (l), (r)(5)-(6) (Vernon 2005). We affirm, in part, and reverse
and remand, in part.
I. Background
Mario Jimenez, M.D., underwent surgery for liposuction, abdominoplasty, and
umbilical hernia repair on April 13, 2004. The surgery was performed by Rafael A. Avila,
M.D., at Renaissance’s ambulatory surgical center in Edinburg, Texas. As part of the
surgery, Jimenez required anesthesia, including epidural Duramorph. The manufacturer’s
warning states that after receiving Duramorph, the patient should be observed in “a fully
equipped and staffed environment for at least 24 hours after the initial dose.”
Nevertheless, Jimenez was discharged and allowed to return home within the first 24 hours
after his surgery. Within 24 hours after his surgery, Jimenez suffered symptoms of fat
emboli and died.
On June 26, 2006, the Jimenezes brought suit against Renaissance,1 Avila, and the
1 The Jim enezes initially brought suit against eight different entities: (1) Edinburg Surgery Center, L.P. d/b/a Surgical Center of South Texas; (2) Edinburg Am bulatory Surgical Center, Inc.; (3) Renaissance Surgical Centers–South Texas, L.L.P. d/b/a Renaissance Surgical Center of South Texas; (4) Renaissance Surgical Centers–South Texas, Inc.; (5) Renaissance Surgical Center South Texas, L.L.P. d/b/a/ Renaissance Surgical Center of South Texas; (6) Renaissance Surgical Centers, Inc.; (7) Universal Health Services, Inc.; and (8) Renaissance Health Care System s, Inc.
The Jim enezes later nonsuited three of those entities: Edinburg Surgery Center, L.P. d/b/a Surgical Center of South Texas; Edinburg Am bulatory Surgical Center, Inc.; and Universal Health Services, Inc. Four
2 nurses, Tammy Rivera, RN, Mary Barrerra, RN,2 and John C. Rhinehart, CRNA,3 alleging
health-care liability claims. The petition specifically alleged that Renaissance “provided
medical health care and treatment to Jimenez through its employees, servants, agents,
and/or representatives acting in the scope of their employment of their agency with
[Renaissance].” The petition alleged that Rhinehart was acting as Renaissance’s
employee or agent and that Renaissance was liable for his actions under the doctrine of
respondeat superior. The Jimenezes also alleged direct liability theories against
Renaissance for improperly discharging Jimenez and for negligent supervision.
On October 24, 2006, within 120 days after filing suit, the Jimenezes served three
expert reports on Renaissance.4 On November 14, 2006, Renaissance filed a motion to
dismiss under section 74.351(b) of the Texas Civil Practice and Remedies Code. Id. §
74.351(b). Renaissance argued that the reports did not constitute a good-faith effort to
comply with the definition of an expert report. See id. § 74.351(a), (l), (r)(5)-(6).
The Jimenezes filed a written response on December 18, 2006. In it, the Jimenezes
argued that Renaissance was required to file objections to the expert reports within 21
days after they were served, as required under Texas Civil Practice and Remedies Code
section 74.351(a). Id. § 74.351(a). They argued that a motion to dismiss did not satisfy
this requirement, and therefore, Renaissance waived its objections to the sufficiency of the
of the rem aining five entities m oved to dism iss the Jim enezes claim s and are parties to this appeal, as identified above. The rem aining entity, Renaissance Surgical Centers, Inc., is not a party to this appeal.
2 The Jim enezes nonsuited Rivera and Barrera as well.
3 Rhinehart m oved to dism iss the Jim enezes’s claim s, and the trial court denied that m otion on March 22, 2007. Rhinehart has not appealed this ruling and is not party to this appeal.
4 The reports are set out in full below, along with the relevant analysis.
3 reports. The Jimenezes also argued that the three reports satisfied the expert report
requirements.
The trial court held hearings on December 19, 2006 and February 1, 2007.5 On
February 2, 2007, the trial court orally denied the motion to dismiss. It signed a formal
order denying Renaissance’s motion on March 22, 2007, and this interlocutory appeal
ensued. See id. § 51.014(a)(9) (Vernon 2008).
II. Jurisdiction
We must first address our jurisdiction over this interlocutory appeal. The Jimenezes
argue that we lack jurisdiction because section 51.014(a)(9) of the civil practice and
remedies code allows an appeal from an order that denies relief sought under section
74.351(b) or that grants relief sought under section 74.351(l) of the code. See id. They
argue that although Renaissance asked the trial court to dismiss under section 74.351(b),
in substance, Renaissance’s motion complained that the reports did not constitute a good
faith effort to comply with the definition of an expert report under section 74.351(l).
Because the trial court did not grant Renaissance’s motion under section 74.351(l), the
Jimenezes argue that we lack jurisdiction over this appeal. See id.
Since the filing of the Jimenezes’ brief, however, the Texas Supreme Court has
rejected the Jimenezes’ construction of the statutes. See Lewis v. Funderburk, 253
S.W.3d 204, 207-08 (Tex. 2008). The supreme court held that when a report is insufficient
under section 74.351(l), it is the same as if a report had not been served at all, and the
health care provider may move to dismiss under section 74.351(b) if a sufficient report is
5 The hearing transcripts do not appear in the record. However, neither party argues that any evidence or argum ents necessary to the resolution of this appeal were presented at the hearing.
4 not filed within 120 days after suit is filed. Id. Accordingly, we have jurisdiction over this
appeal. Id.
III. Waiver
Before we address the reports, we must also address the Jimenezes’ argument that
Renaissance waived any objections to the expert reports by failing to file objections within
21 days after the expert reports were served. Texas Civil Practice and Remedies Code
section 74.351(a) states: “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 21st day after the date it was served, failing which all objections
are waived.” TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(a). The Jimenezes argue that
rather than filing objections to their expert reports, Renaissance merely moved to dismiss.
According to the Jimenezes, objections are important because they allow the plaintiff to
correct any deficiencies in the reports. They argue that there is no provision in the statue
that allows for the filing of a motion to dismiss as an alternative manner to address
complaints as to the contents of an expert report. They reason, therefore, that
Renaissance has waived all its complaints.
The Jimenezes do not argue that the motion to dismiss was untimely; it was not.
Id. Apparently, they believe that Renaissance should have filed a separate document
raising objections to the report. If the circumstances of this case were different, we might
agree with the Jimenezes’ reasoning. A health care provider must raise any objections to
the reports within 21 days after they are served, or any complaints are waived. Id.
Furthermore, a health care provider cannot move to dismiss until the 120-day deadline for
serving the reports has passed. Id. § 74.351(b). Thus, if a plaintiff chooses to serve its
5 expert reports well before the 120-day deadline, a health care provider must still file
objections to the report within 21 days after they are served, even though a motion to
dismiss cannot yet be filed. Id. § 74.351(a). So, for example, if a plaintiff files suit on day
one and serves its expert reports on day 70, the health care provider must file written
objections to the report on or before day 91, even though the provider cannot move to
dismiss until after day 120. Id. § 74.351(a). In those circumstances, the objections must
necessarily be separate from the motion to dismiss. The objections, under those
circumstances, allow the plaintiff to correct any deficiencies in the report and re-serve the
report before the 120-day deadline. Id.
However, in the context of the facts of this case, the Jimenezes’ arguments and
reasoning do not make sense. The reports were served on October 24, 2006, exactly 120
days after suit was filed. Even if Renaissance had filed objections to the report on the day
that the Jimenezes served the reports, it would have been too late to correct the reports.
See id. Renaissance filed its motion to dismiss on November 14, 2006, which was 21 days
after the reports were served.
The Jimenezes have not cited a single case that holds that a motion to dismiss in
this context is an insufficient method to raise objections to the reports, nor have we located
any. Moreover, the statute does not require a separate filing when the 120-day deadline
has passed, and we see no reason to require one. The motion to dismiss clearly sets out
Renaissance’s complaints about the reports, and the Jimenezes do not suggest that
Renaissance’s complaints were unclear or lacked specificity. The Jimenezes were able
to address all of the complaints in their response to the motion. Separately-filed objections
would have served no additional purpose. See TEX . R. APP. P. 33.1(a)(1) (stating error is
6 preserved when a timely request, objection, or motion states the grounds therefor with
sufficient specificity to make trial court aware of complaint). We hold that Renaissance
properly preserved its arguments as to why the reports are insufficient and did not waive
error.
IV. Expert Reports
We now turn to the substance of the reports. By a single issue, Renaissance
argues that the trial court erred in denying its motion to dismiss because the Jimenezes
failed to make a good-faith effort to serve “expert reports” as required by section 74.351
of the civil practice and remedies code. TEX . CIV. PRAC . & REM . CODE § 74.351(a), (l),
(r)(5)-(6).
A. Standard of Review and Applicable law
We review the trial court’s decision to deny a motion to dismiss under an abuse of
discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
877-78 (Tex. 2001). The trial court is limited to reviewing the information within the four
corners of the report. Id. at 878. “An abuse of discretion occurs when a trial court acts in
an arbitrary or unreasonable manner or without reference to any guiding principles.” Moore
v. Sutherland, 107 S.W.3d 786, 789 (Tex. App.–Texarkana 2003, pet. denied) (citing
Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999)). An appellate court may not reverse
for abuse of discretion simply because it would have decided the matter differently.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985).
“With respect to resolution of factual issues or matters committed to the trial court's
discretion, for example, the reviewing court may not substitute its judgment for that of the
trial court.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). The appellant must
7 “establish that the trial court could reasonably have reached only one decision.” Id. at 840.
Conversely, a trial court has no discretion in determining what the law is or in applying the
law to the facts. “[A] clear failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion.” Id.
Section 74.351 requires that a plaintiff serve on each party “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.” Id. § 74.351(a). An “expert
report” is defined as
a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
Id. § 74.351(r)(6). A court must grant a motion to dismiss under section 74.351(b) if, after
the 120-day deadline has passed, it appears to the court that the report does not represent
an objective, good-faith effort to comply with the definition of an expert report. Id. §
74.351(l).
To qualify as a “good-faith effort,” the report must “provide enough information to
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 claims have merit.” Palacios, 46 S.W.3d at 879. “A report that merely states the
expert's conclusions about the standard of care, breach, and causation does not fulfill
these two purposes. Nor can a report meet these purposes and thus constitute a
good-faith effort if it omits any of the statutory requirements.” Id.
8 B. Vicarious Liability Claims
The Jimenezes brought suit against Renaissance alleging that Renaissance was
vicariously liable for the conduct of its CRNA, John Rhinehart.6 To support this claim, they
submitted the report of Alan R. Schneider, M.D., a board-certified anesthesiologist. It
stated:
The standard of care in this situation involving the administration of epidural or spinal preservative free morphine is what a safe, reasonable, and prudent anesthesia care provider would do when administering this drug. This includes but is not limited to avoiding its usage in contraindicated situations, insuring that no other sedative drugs are administered post operatively without the knowledge of an anesthesia care provider, and that this patient be monitored post-operatively in a skilled setting for at least 24 hours. A skilled setting would include any of the following[:] an intensive care unit, a telemetry floor, or a regular nursing floor. However, wherever this patient ends up, that location must be equipped to handle the complications and side effects that arise when morphine is administered in that fashion. These include pruritis, nausea, vomiting, sedation and respiratory depression. There is NO situation which would allow for the patient to go home on the day of surgery having received epidural morphine that very same day. I have reviewed the anesthesia record of John Rhinehart CRNA which includes the preop, intra-op, and post-operative time periods. The patient was a 49 year old male who had an elective abdominalplasty, liposuction, and umbilical hernia repair performed as an outpatient under a combination of epidural analgesia and deep sedation with periods of general anesthesia. According to the medical records he had an uneventful intra- operative and immediate post-operative course. He was discharged from the surgery center on the day of surgery. The patient received several different drugs throughout his epidural catheter including the local anesthetics Lidocaine and Marcaine, and the narcotics Fentanyl and Duramorph. All are appropriate drugs to use, however, the usage of epidural Duramorph, which is the trade name for preservative free morphine, mandates that the patient be monitored for a period of 24 hours. This monitoring needs to be in a setting that allows for the diagnosis and treatment of the complications and side effects of this drug when administered in this manner. When John Rhinehart CRNA allowed this patient to go home on the
6 The Jim enezes did not subm it reports addressing the conduct of Dr. Avila or the other two nurses that provided health care to Jim enez, or Renaissance’s vicarious liability for their conduct. Those parties have been nonsuited.
9 same day as receiving epidural Duramorph, he clearly violated the standards of care necessary when administering this drug. If this patient had been monitored post-operatively in a proper setting, the symptoms he exhibited at home more likely than not would have been appreciated and treated in a more timely manner by trained professionals.
The Jimenezes limited the use of this report to their vicarious liability claims against
Renaissance—they do not rely on this report to support their direct liability theories.7
Renaissance argues that Schneider’s report merely refers to Rhinehart’s actions
and does not refer to Renaissance. It argues that “[w]hether or not the claims against the
health care provider are brought under theories of agency or respondeat superior, they are
still required to be supported by an expert report.” In other words, Renaissance argues
that the expert report must specifically identify Renaissance and, to the extent the claim
is based on vicarious liability, explain how Renaissance is vicariously liable. Because
Schneider’s report does neither, Renaissance argues that the Jimenezes cannot rely on
this report to satisfy the expert report requirement.
Section 74.351 requires that the plaintiff serve on each defendant whose conduct
is implicated by a health-care liability claim an expert report that sets forth the standard of
care, breach of that standard, and causation. TEX . CIV. PRAC . & REM . CODE ANN . §
74.351(a), (r)(6). When a plaintiff’s claim against a hospital is not for direct negligence, but
is based on the conduct of an employee through the doctrine of respondeat superior, the
expert report need not identify the hospital by name or include an opinion about how the
employee was acting in the course and scope of employment for the hospital. Univ. of
Tex. Sw. Med. Center v. Dale, 188 S.W.3d 877, 879 (Tex. App.–Dallas 2006, no pet.). In
fact, a medical expert would not be qualified to render such an opinion on the legal issue
7 It is undisputed that Schneider’s report does not address Renaissance’s direct liability.
10 of vicarious liability. Id. 879 n.1; see also In re CHCA Conroe, L.P., No. 09-04-453-CV,
2004 WL 2671863, at *1 (Tex. App.–Beaumont Nov. 23, 2004, orig. proceeding) (mem.
op.) (“The conduct by the hospital on which the agency relationship depends is not
measured by a medical standard of care. These are principles of agency law on which no
expert report is required.”). If the report identifies conduct by the hospital’s employee, the
hospital is implicated, and as long as the report adequately addresses the standard of care
applicable to the employee, how the employee breached the standard of care, and that the
breach caused the plaintiff’s injury, it is sufficient as against the hospital to satisfy the
expert report requirement for the vicarious liability claims. Dale, 188 S.W.3d at 879; see
also Casados v. Harris Methodist H-E-B, No. 02-05-080-CV, 2006 WL 2034230, at *4 (Tex.
App.–Fort Worth 2006, no pet.) (mem. op.) (holding plaintiff satisfied expert report
requirements with respect to vicarious liability claims by filing expert report detailing
negligence of doctors, for whose actions hospital was liable).
Renaissance cites CHCA Mainland, L.P. v. Burkhalter for the proposition that a
report cannot merely point to an employee’s negligence to satisfy the expert report
requirements for a hospital, even though the hospital’s liability is based on respondeat
superior. 227 S.W.3d 221, 228 (Tex. App.–Houston [1st Dist.] 2007, no pet.). In CHCA
Mainland, the Houston First Court of Appeals stated:
The Burkhalters argue that because they allege in their petition that Dr. Armstrong was acting as the hospital's “agent, servant, and/or employee,” that “each statement regarding Dr. Armstrong may implicate Mainland.” However, the Burkhalters cite no authority for the proposition that, by alleging in a petition that a doctor is acting as an “agent, servant, and/or employee” of a hospital, an expert report may be adequate under section 74.351 in regard to a hospital. Moreover, Mainland notes that “Dr. Fullerton did not state that his opinions against Dr. Armstrong would also apply against the hospital because of the Burkhalters' pleading that Dr. Armstrong was an agent of the hospital.” Because Dr. Fullerton's expert report omits at least
11 one of the three specifically enumerated requirements of section 74.351(r)(6) in regard to Mainland, it cannot constitute an objective good faith effort to meet the statutory requirements.
Id.; cf. Packard v. Guerra, 252 S.W.3d 511, 531 (Tex. App.–Houston [14th Dist.] 2008, pet.
filed) (holding trial court properly considered expert report by lawyer who “connected the
dots” between entities and their responsibilities for health-care liability claim).
In a later opinion, however, the same court8 held that
[w]hen a plaintiff sues more than one defendant, the expert report must set forth the standard of care for each defendant and explain the causal relationship between each defendant's individual acts and the injury . . . . This includes a hospital if a plaintiff is alleging that the hospital itself was directly negligent, rather than just alleging that the hospital was liable due to vicarious liability.
Univ. of Tex. Med. Branch v. Railsback, No. 01-00729-CV, 2008 WL 1747902, at *3 (Tex.
App.–Houston [1st Dist.] Apr. 17, 2008, no pet.). The court went on to review the expert
reports submitted by the plaintiff, and it concluded that an expert report, which discussed
only the standards of care, breach, and causation related to actions of a doctor and the
nursing staff, was sufficient to satisfy the expert report requirement for the hospital based
on the plaintiff’s vicarious liability theories. Id. at *9 (“Dr. Ghadially informed UTMB of its
vicarious liability by the failure of both Dr. Ivey and the nursing staff to properly maintain
and pad the tourniquet and make sure that Railsback's peroneal nerve was carefully
padded and protected.”).
The Jimenezes argue that CHCA Mainland is distinguishable because in that case,
the expert report did not set forth the standard of care, breach, or causation required for
the hospital or its staff and nurses. CHCA Mainland, L.P., 227 S.W.3d at 228. In other
8 In fact, Railsback and CHCA Mainland were authored by the sam e justice.
12 words, CHCA Mainland did not hold that a plaintiff’s expert report must specifically allege
vicarious liability within the report. Id. Rather, in CHCA Mainland, the expert report was
deficient with respect to the employee on which the hospital’s vicarious liability was based.
Id. We agree with this interpretation, and Railsback’s citation to CHCA Mainland confirms
it is correct.
In Railsback, the court distinguished between allegations of a hospital’s direct
negligence and vicarious liability and cited to CHCA Mainland with the following
parenthetical: “(holding that report did not satisfy required elements of expert report when
hospital sued for negligence).” Railsbeck, 2008 WL 1747902, at *3. In the same citation,
it referred to Dale with the following parenthetical: “(concluding that plaintiffs need not
mention hospital in expert report when plaintiffs limited their claim against hospital to
vicarious liability for employees).” Id. Thus, the Houston Court of Appeals has recognized
that CHCA Mainland merely stands for the proposition that the report in that case did not
satisfy all the required elements for an expert report as to the employee—not for the
proposition that Renaissance urges.
Accordingly, we hold that the trial court did not abuse its discretion by relying on
Schneider’s report to satisfy the expert report requirements with regard to the Jimenezes’
claims against Renaissance, to the extent that those claims are based on Renaissance’s
vicarious liability for Rhinehart’s actions. Renaissance has not raised any other challenge
to the sufficiency of Schneider’s report in this appeal; thus, we affirm the trial court’s order
denying Renaissance’s motion to dismiss with respect to the vicarious liability claims.
C. Direct Liability Claims
The Jimenezes also pleaded that Renaissance was directly liable for negligently
13 discharging Jimenez and for negligently failing to supervise its employees. To satisfy the
expert report requirement for these direct liability claims, the Jimenezes submitted the
report of David S. Lopez, FACHE9 on Renaissance’s negligence, and the report of Jose
Perez, M.D., to establish causation. First, Renaissance argues that Lopez is not qualified
to render an opinion because he lacks experience in “the diagnosis, care, treatment of the
illness, injury, or condition involved in the claim.” Second, Renaissance argues that
Lopez’s report fails to set forth a standard of care for a hospital. Finally, Renaissance
argues that Perez’s opinion on causation is conclusory.10
1. Lopez’s Qualifications
Lopez’s report does not address his qualifications; rather, Lopez’s qualifications are
set out in the curriculum vitae that was attached to his report. The curriculum vitae
indicates that Lopez is not a physician, but rather, he has a Bachelor of Science Degree
in business administration and a Master of Science Degree in Health Care Administration.
Lopez currently serves as the president and chief executive officer of the Harris
County Hospital District. Prior to this employment, Lopez served as the executive vice
president and chief operating officer of the hospital district, and he also served as the
senior executive director of the University of Texas Medical Branch at Galveston. In these
positions, under his “major accomplishments,” Lopez lists significant experience in the
hospitals’ financial management. For example, Lopez states that he developed an
accountability reporting system which resulted in a reduction of overtime hours and a
9 FACHE is an acronym for Fellow in the Am erican College of Health Care Executives.
10 Although Perez’s report discusses a standard of care, the Jim enezes represented to the trial court that they were subm itting Perez’s report solely on the issue of causation and not to establish liability. The Jim enezes do not argue on appeal that Perez’s report can be considered to establish the standard of care applicable to Renaissance.
14 reduction of man-hours, which further resulted in savings to the hospital. Additionally, he
implemented an overall expense assessment program.
Prior to this experience, Lopez served as a consultant for Healthcare Services in
Corpus Christi. He identifies the following experience at that job: (1) submitting an
application for a Health Maintenance Organization to the Texas Department of Insurance;
(2) examining the strategic direction of a rehabilitation program so as to allow the program
to receive managed care reimbursement; (3) recommended methods to enhance the
utilization of product lines created by MAPA;11 (4) made recommendations to improve a
home health agency’s overall profits; (5) assisted the Nueces County Hospital District in
transitioning from its status as a health care provider to a payer for services and
represented the district at meetings with the Texas Department of Health.
Lopez’s employment history continues in various administrative capacities in various
other hospitals, and under each job title, he lists similar experience in the financial
operation of the various hospitals. Nowhere in his resume does Lopez indicate that he has
experience developing or implementing standards for discharging a patient or how to
properly monitor a patient, or the standards applicable to a nurse or other employee who
has discharged a patient that received an anesthetic.
We agree with the Jimenezes that the civil practice and remedies code does not
require an expert opining on the negligence of a hospital to have a medical degree. TEX .
CIV. PRAC . & REM . CODE ANN . § 74.402 (Vernon 2005). However, the statute requires that
the expert have “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
11 This acronym is not explained in the record.
15 be “qualified on the basis of training or experience to offer an expert opinion regarding
those accepted standards of health care.” Id. § 74.402(b)(2), (3). Lopez opined that
Renaissance should have followed the package instructions for administering Duramorph
by keeping Jimenez overnight for observation,12 yet his curriculum vitae does not indicate
in any form or fashion that he has “training or experience” to offer an expert opinion on this
type of health care. Accordingly, there was nothing in the record to support the trial court’s
decision, and we hold that the trial court abused its discretion by holding that Lopez was
qualified to opine on the Jimenezes’ direct liability claims against Renaissance. Walker,
827 S.W.2d at 840. Because we hold that Lopez was not qualified to render an opinion
on Renaissance’s direct negligence, we need not analyze whether he properly stated the
standard of care.
2. Sufficiency of Perez’s Opinion on Causation
Renaissance further argues that Perez’s opinion on causation was conclusory and
does not constitute a good-faith effort to comply with the expert report requirements.
Renaissance argues that the report must detail specifically what actions could have been
performed to avoid the result. It argues that Perez’s report fails to identify what could have
been done in the hospital setting, had Jimenez remained at the hospital, that would have
12 Lopez’s report states:
A review of the inform ation provided reveals two (2) deviations from the "standard of care" generally found in health care organizations. These are:
....
(2) The Surgical Center adm inistered an anesthetic agent to conduct the surgical procedure. Since the agent utilized was Duram orph, the drug inform ation provided by the m anufacturer clearly states that due to the potential risk of adverse effects "patients m ust be observed in a fully equipped and staffed environm ent for at least 24 hours after the initial dose." In Dr. Jim enez's case this did not occur. The Surgical Center should have followed the recom m ended precautions for the use of this anesthetic.
16 saved Jimenez’s life.
Perez’s report stated:
Based on my review of the medical records, it is my opinion, based on reasonable medical probability, that the lack of appropriate care and treatment was a direct and proximate cause of the death of Mario Jimenez, M.D. But for the inappropriate discharge of Mario Jimenez, M.D. from the ambulatory surgical center on April 13, 2004, Mario Jimenez, M.D. would not have expired on April 14, 2004. Had Mario Jimenez, M.D. been placed in a hospital setting with the ability to provide supportive therapy and care to timely treat the development of the fat emboli, it is my medical opinion that more likely than not Mario Jimenez, M.D. would have survived the episode that took his life on April 14, 2004.
Renaissance relies on Costello v. Christus Santa Rosa Health Care Corp. to support
its argument. 141 S.W.3d 245, 249 (Tex. App.–San Antonio 2004, no pet.). In Costello,
the trial court granted the hospital’s motion to dismiss. Id. at 247. The expert, Dr. Schilling,
opined that “[i]f this patient would have been appropriately triaged and evaluated, then in
all reasonable medical probability she would have survived.” Id. The San Antonio Court
of Appeals affirmed the trial court’s ruling that this statement was insufficient:
Although the Act only requires a “fair summary” of his opinions, Dr. Schilling’s mere assertion that the patient would have survived is conclusory and is not sufficient. Nowhere in Dr. Schilling’s report does he explain the causal connection between Christus’[s] claimed omissions (failure to appropriately triage and evaluate) and Lozano’s death. Dr. Schilling offers no explanation of what medical information a more timely triage and evaluation would have revealed, nor does he state what would have been done had Christus not failed to act, what treatment would have or could have been available, that the patient was a candidate for the unknown treatment, or that the unknown treatment could have or would have been effective. Dr. Schilling’s report fails to state how Christus’[s] failure to act was a substantial factor in bringing about Lozano’s death and without which her death would not have occurred.
Id.
The Jimenezes, on the other hand, point to Moore v. Sutherland. 107 S.W.3d at
791. In that case, the trial court dismissed the plaintiff’s claims, holding that the plaintiff’s
17 expert report on causation did not constitute a good-faith effort to comply. Id. at 788. The
expert’s report stated:
It is my opinion that Dr. Sutherland should have had a high index of suspicion for a bile duct leak due to his dissection in this region. The patient most likely developed her bile duct leak on 3/8/98 when she developed abdominal pain and an increased need for narcotics. Most surgeons would have instituted a diagnostic evaluation to rule out bile peritonitis between 3/9/98 and 3/13/98. Dr. Sutherland's failure to do so was below the standard of care. Had the diagnosis of bile peritonitis been made before discharge from the hospital, treatment would have prevented the patient's death.
Id. at 790. The court of appeals held that the expert’s statement that, “[h]ad the diagnosis
of bile peritonitis been made before discharge from the hospital, treatment would have
prevented the patient's death,” constituted a good-faith effort to satisfy the expert report
requirement for the causation element. Id. at 790-91. The court held that the statement
was not “a conclusion or a statement of a mere possibility . . . but is a positive statement
of fact.” Id. at 791.
As stated above, we review the trial court’s decision to deny Renaissance’s motion
to dismiss for an abuse of discretion. Palacios, 46 S.W.3d at 877-78. Even if we would
not have made the same decision, we must affirm the trial court’s decision unless it
appears that the trial court clearly failed to apply or to analyze the law correctly. Walker,
827 S.W.2d at 839. We agree with Moore’s analysis of the causation issue, and we hold
that under Moore, the trial court did not abuse its discretion by holding that Perez’s opinion
on causation constituted a good-faith effort. Moore, 107 S.W.3d at 791. Although Perez’s
report did not identify the specific treatments that could have been applied to Jimenezes’
fat emboli, the report states clearly that “[h]ad Mario Jimenez, M.D. been placed in a
hospital setting with the ability to provide supportive therapy and care to timely treat the
development of the fat emboli, it is my medical opinion that more likely than not Mario
18 Jimenez, M.D. would have survived the episode that took his life on April 14, 2004.” This
was certainly enough to “inform the defendant of the specific conduct the plaintiff has
called into question” and “provide a basis for the trial court to conclude that the claims have
merit.” Palacios, 46 S.W.3d at 879; Moore, 107 S.W.3d at 791; see also Gelman v.
Cuellar, No. 13-07-00651-CV, 2008 WL 3522098, at *5 (Tex. App.–Corpus Christi Aug. 14,
2008, no pet. h.).
3. Appropriate Remedy
The trial court found the reports sufficient in all respects. Thus, the trial court had
no reason to consider whether to grant a thirty-day extension to cure defects in the report.
TEX . CIV. PRAC . & REM . CODE § 74.351(c) (allowing trial court to grant one thirty-day
extension to cure a defective report). The Texas Supreme Court has held that when the
court of appeals reverses a trial court’s determination that an expert report is sufficient, the
appropriate remedy is for the court of appeals to remand to the trial court to consider
whether to grant a thirty-day extension. See Leland v. Brandal, No. 06-1028, 2008 WL
2404958, at *2-4 (Tex. June 13, 2008).
Because we have held that Lopez was not qualified to render an opinion on
Renaissance’s direct negligence and that the Jimenezes have not offered another report
for this purpose, we remand to the trial court to consider whether to grant a thirty-day
extension to cure this deficiency.
V. Conclusion
We hold that the trial court did not abuse its discretion by relying on Schneider’s
report to satisfy the expert report requirements for the Jimenezes’ vicarious liability claims.
With respect to the Jimenezes’ direct liability claims, however, Lopez’s report did not
19 constitute a good-faith effort to comply because the report did not demonstrate that Lopez
was qualified to render an opinion on Renaissance’s direct liability. The Perez report,
however, was a good-faith effort to satisfy the expert report requirement on the causation
element. Accordingly, we affirm, in part, and reverse and remand, in part, so that the trial
court may consider whether to grant a thirty-day extension to cure the deficiencies in
Lopez’s report.
___________________________ GINA M. BENAVIDES, Justice
Memorandum Opinion delivered and filed this the 28th day of August, 2008.